LAWS(P&H)-2015-5-77

S.S. RATHI Vs. PREM DESWAL

Decided On May 13, 2015
S.S. Rathi Appellant
V/S
Prem Deswal Respondents

JUDGEMENT

(1.) APPELLANT has assailed judgment dated 19.01.2013 passed by Judicial Magistrate Ist Class, Karnal whereby respondent has been acquitted in a complaint under Section 138 of Negotiable Instruments Act (for short 'the Act').

(2.) RESPONDENT filed complaint before Judicial Magistrate Ist Class, Karnal with allegations that accused/respondent took a loan of Rs. 3,50,000/ - by cheque and cash from the complainant/appellant for construction of school building in Delhi. In order to discharge his liability, accused issued cheque No. 026672 dated 31.03.2007 in a sum of Rs. 1,29,000/ -, cheque No. 026673 dated 30.04.2007 in the sum of Rs. 74,000/ - and cheque No. 649471 dated 31.03.2007 in a sum of Rs. 1,00,000/ -. Thereafter accused requested the complainant not to present the cheque for encashment till January 2007 as he was not having sufficient funds in his account. When the cheques were presented by complainant for encashment with the Banker then same were returned with remarks of insufficiency of funds. The dishonour of cheques were informed vide memo dated 16.07.2007. Statutory notice was given on 14.07.2007 by registered post calling upon accused to make payment, but the accused failed to make payment within stipulated period and thereafter complaint was filed. After due compliance of notice accusation, complainant led evidence in the form of his statement as CW -1 besides tendering affidavit as CW1/A and also cheques Exs. C -1, C -2 and C -3 and memo Exs. C -4 and C -5 and memo of Uco Bank as Ex. C -6. Legal notice Ex. C -7, postal receipts Ex. C -8 and Registered A.Ds. Ex. C -9. Complainant also got examined Ashok Goel, Clerk PNB, Karnal as CW2 who has deposed that cheques on presentation were dishonoured and also proved copy of bill registered report collection as on 21.05.2010 Ex. CW/A and statement of account for the period 01.01.2007 to 21.05.2010 Exs. CW2/B.

(3.) AFTER closing evidence of the parties, trial Court heard the case on merits. Learned counsel for the appellant asserted the factual details and submitted that accused had committed an offence in terms of Section 138 of the Act. Accused took stand that though his signatures are appearing on the cheques but mere issuance of cheque does not constitute an offence under Section 138 of the Act because it has to be proved that issuance of cheques were in discharge of legal debt or liability. The amount was claimed to be not legally enforceable debt because cheques were issued as security cheques and not in discharge of his legal debt or liability.