(1.) The applicant/appellant has filed the present application for grant of leave to appeal against the order of acquittal dtd. 6/1/2020 passed by Judicial Magistrate, 1st Class, Jalandhar, whereby the accusedrespondent has been acquitted of the charges under Sec. 138 of the Negotiable Instruments Act, 1881.
(2.) The brief facts of the case are that the accused/respondent had friendly terms with the complainant. Taking the benefit of the same, he sought a friendly loan of Rs.30,000.00 from the complainant and the complainant in view of the said friendly relations advanced the accused a sum of Rs.30,000.00 in the month of July, 2018 and the accused assured the complainant that the accused would return the said amount in some time. The accused in order to discharge his legal enforceable liability and to repay the amount of the said friendly loan issued a cheque bearing No.000019 dtd. 10/9/2018 for Rs.30,000.00 drawn on HDFC Bank, Ground Floor Green City, Mithapur Road, Alipur, Tehsil and District Jalandhar from account bearing No.50100202842203 being maintained and operated by the accused in favour of the complainant. At the time of issuing the above said cheque, the accused assured the complainant that the cheque in question would be honoured on its presentation for encashment. As per such assurance of the accused, the complainant accepted the said cheque under bonafide belief and faith and presented the same for encashment through his banker Oriental Bank of Commerce, Mithapur Jalandhar, but the same was returned as dishonoured by the banker of the accused along with memo dtd. 12/9/2018 containing the remarks "Funds Insufficient". After receiving the above said dishonoured cheque from his bank, the complainant immediately approached the accused and narrated about the fate of the cheque, then the accused requested the complainant to present the cheque in question again in the month of December, 2018 for encashment and the complainant reposed faith in the accused and presented the said cheque for encashment through his banker, but the complainant again was surprised to know that the cheque had been dishonoured with the remarks "Funds Insufficient" vide memo dtd. 3/12/2018, meaning thereby that there was no sufficient funds in the account of the accused to meet the payment of the cheque in question on the relevant dates when the cheque in question was presented for encashment. The cheque in question along with memo was got received by the complainant through his banker later on. On the receipt of the said dishonoured cheque along with memo, the complainant got issued/served a legal notice dtd. 6/12/2018 upon the accused through his counsel Sh. Rohit Gambhir, Advocate, through registered A.D. post. In the said notice, the accused was asked to pay the amount of the dishonoured cheque in question i.e. Rs.30,000.00 within fifteen days from the receipt of the legal notice. Since no payment was made the complaint came to be filed.
(3.) In preliminary evidence, statement of complainant-Ashok Kumar Soni as CW-1 was recorded in which the complainant tendered into evidence his duly sworn affidavit Ex.CA reiterating the facts as mentioned in his complaint. He also tendered cheque Ex.C1, memos Ex.C2 and Ex.C3, legal notice Ex.C4 and postal receipt Ex.C5 and complainant closed his preliminary evidence. Thereafter, the accused was ordered to be summoned to face trial under Sec. 138 of Negotiable Instruments Act vide order dtd. 8/1/2019.
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