DILIP MAHAJAN Vs. KAPIL

JUDGEMENT

(1.) The petitioner has filed this petition under Section 482 of the Cr.P.C. being aggrieved by order dated 10.6.2019 passed by the learned 5th Additional Sessions Judge, Khandwa in Criminal Revision No.26/2019, affirming the order dated 9.2.2019 passed by the learned Judicial Magistrate First Class, Khandwa in Criminal case No.2600353/2016 filed for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") in which an application was filed by the applicant for summoning the documents from the Income tax department and Commercial tax department and summoning the Branch Manager of Axix Bank, Branch Khandwa alongwith all documents in connection with cheque No.65575 dated 18.2.2016 and cheque No.86194 as also the questioned cheques be sent to the hand writing expert for hand-writing examination.

(2.) The brief facts of the case leading to the filing of the present petition, are that, the respondent has lodged a complaint under Section 138 of the NI Act against the applicant alleging therein that the applicant had taken a loan of Rs.5 Lacs from the respondent. The applicant has given Cheque No.65575 dated 18.2.2016 to the respondent for repayment of the said loan. When the complainant/respondent deposited that cheque for encashment in Axix bank, Branch-Khandwa, the same was returned by the bank with an endorsement "Insufficient Funds" available in the account of the applicant for encashment of the cheque. Thereafter, the respondent served a notice to the applicant under the NI Act within stipulated time period for repayment of the cheque amount, however, the applicant despite receiving the notice, did not pay the amount, therefore, the respondent filed a complaint under Section 138 of the NI Act against the applicant.

(3.) Learned counsel for the applicant submits that during trial the applicant questioned the cheque as it is forged and, therefore, the applicant is not liable for payment of any money. It is further submitted that though the applicant has taken loan of Rs.5 Lacs from the respondent, however, vide cheque No.86194 the respondent had withdrawn the said amount of Rs.5 Lacs on the same day when it was deposited in the account of the applicant. In the cross-examination, the respondent in para 17 was suggested that he used a blank cheque of the applicant and appended forged signature on that cheque and withdrawn a sum of Rs.5 Lacs on the same day when it was deposited in the account of the applicant.