SIDHU BEEJ BHANDAR Vs. GURDEEP SINGH

JUDGEMENT

(1.) The present application is preferred under Sec. 378(4) of the Cr.P.C. against the Judgment of acquittal dtd. 22/5/2023 passed by learned SubDivisional Judicial Magistrate Dabwali, Sirsa in Criminal Complaint bearing No. NACT/521/2018 under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter "NI Act').

(2.) Briefly, the facts are that the petitioner is in the business of wheat, cotton and commission agency at Mandi Kalanwali, Tehsil Kalanwali, District Sisra. The instant complaint has been registered by Manjinder Singh, proprietor of the petitioner-firm. On 19/12/2016 the respondent-accused approached the complainant and requested for a loan of Rs.10,000.00 for household needs. Thereafter, the respondent visited the shop of the complainant and sold cotton crop for a sum of Rs.1,35,080.00. The respondent approached the complainant again on 18/1/2017 to purchase fertilizers and raised a demand of Rs.75,000.00 and the same was given to the respondent by the complainant through RTGS. On 29/6/2017, the respondent approached the complainant again and demanded for a sum of Rs.6,41,000.00 to be lent to him as loan. The said amount was transferred to the respondent through NEFT. At the end of the year, Rs.5,90, 920.00 was found standing against the respondent. The respondent failed to repay the complainant in spite of involvement of the panchayat. However, on 19/5/2018, the respondent requested the complainant to loan him an amount of Rs.2,00,000.00 and considering the respondent to be in genuine need, the complainant issued a cheque dtd. 19/5/2018 for Rs.2,00,000.00 in favour of the respondent. At the time of receiving the cheque, the respondent assured the complainant that he will sell his upcoming crop through his agency, which he later failed to comply with. In order to discharge his liability, the respondent issued a cheque bearing no. 741701 dtd. 21/10/2018 for Rs.6,00,000.00 as part payment in favour of the complainant. The same was dishonoured on presentation for encashment vide memo dtd. 23/10/2018 with the remarks "funds insufficient.' Thereafter, on 31/10/2018, a legal noticed was issued to the respondent. However, the respondent failed to make the requisite payment and the present complaint was filed, in which he was acquitted vide the impugned Judgment.

(3.) Having heard the learned counsel for the applicant and after perusing the record of the case with his able assistance, it transpires that the petitioner, in order to prove the existence of a legally enforceable debt, has only examined Manjinder Singh, the proprietor of the petitioner-firm who presented computerised account books as (Ex C2 to Ex C5). Admittedly, there is a pre-existing arhant relationship between the complainant and the respondent, as such, if a payment has been made by the petitioner to the accused, it cannot be assumed to be a loan, unless otherwise proved. The account books exhibited by the petitioner cannot equated with a promissory note. No explanation was presented by the petitioner as to why loans were given without recording the same in form of an agreement or pronote. Further, the account books showing the acknowledgment of the amount received do not bear the signature of the respondent.