SHASHI BALA TYAGI Vs. SATYA NARAYAN SHARMA

JUDGEMENT

(1.) The present revision petition has been filed under Section 397 read with Section 401 Cr.P.C. against order dated 4.11.2009 passed by learned Additional Sessions Judge, Faridabad, in an appeal, against judgment of conviction dated 2.3.2009 and order of sentence dated 3.3.2009 passed by the court of learned Chief Judicial Magistrate, Faridabad, vide which the present revision petitioner was convicted for offence under Section 138 of the Negotiable Instrument Act (hereinafter to be referred as the 'Act') and was sentenced to undergo rigorous imprisonment for a period of six months and to pay an amount of Rs.2,00,000 as a compensation, vide which judgment of conviction and order of sentence passed by learned trial Court was set aside and the case was remanded to learned trial Court for recording the statement of accused under Section 313 Cr.P.C. in accordance with law and to proceed thereafter in accordance with law.

(2.) I have heard learned counsel for the parties and have gone through the whole record carefully.

(3.) Briefly stated, the respondent/complainant Satya Narayan Sharma had filed a complaint under Section 138 of the Act against the present revision/petitioner on the brief allegations that complainant was having friendly relationship with husband of accused, who is proprietor of M/s. Sai Travels. Accused had borrowed Rs.2,65,000 from the complainant on 20.11.2004 in the presence of witnesses for smooth running of her business. Accused had promised to return the said amount by August 2005. Accordingly a post dated cheque bearing No. 189268 dated 1.9.2005 for Rs. 2,65,000 drawn on Indian Overseas Bank, NIT, Faridabad, was issued on 1.9.2005. Complainant requested for return of money. However, accused made a request that he should not put up the cheque for encashment upto 10.9.2005. Later on the cheque was presented by complainant to his banker and however, the same was returned vide memo dated 15.9.2005 with remarks 'Funds insufficient'. The cheque was received unpaid on 17.9.2005 by the complainant. Complainant served notice dated 6.10.2005 which was duly received by the accused vide acknowledgment receipt on 8.10.2005. She had also given reply dated 22.10.2005 through her counsel denying that she is proprietor of Sai Travels and also factum of taking loan from the complainant. Rather she had taken the stand that her husband had taken loan of Rs. 1,30,000 and blank cheque was issued as a security. After recording preliminary evidence, revision petitioner was summoned to face trial and notice of accusation under Section 138 of the Act was served upon her, to which she did not plead guilty and claimed trial.