INDUSIND BANK LIMITED Vs. PALA RAM

JUDGEMENT

(1.) Present application under Section 378 (4) of the Code of Criminal Procedure ('Cr.P.C.' for short) seeking leave to appeal, is directed against the judgment of acquittal dated 27.2.2013, passed by the learned Judicial Magistrate 1 st Class, Rohtak, whereby complaint under Section 138 of the Negiotiable Instruments Act, ('NI Act' for short), filed by the present applicant-complainant, was dismissed and the accused-respondent was acquitted.

(2.) Briefly put, facts of the case are that the complainantapplicant granted loan to Pardeep Kumar son of Baldev Singh for purchase of vehicle, where respondent Pala Ram stood guarantor for Pardeep Kumar and allegedly issued a cheque bearing 798839 dated 31.1.2009 drawn on State Bank of Patiala, Narwana Branch for an amount to Rs. 11,15,000/- in the capacity as guarantor. Applicantcomplainant presented the said cheque for encashment but the same was returned unpaid vide return memo dated 11.2.2009 with the remarks "Funds Insufficient". Thereafter, complainant issued a legal notice dated 27.2.2009 asking the accused to repay the cheque amount, however, accused failed to repay the loan amount within the stipulated period. Applicant-complainant filed the complaint against the respondent.

(3.) Preliminary evidence was recorded and after consideration of the same, learned trial court found a prima facie case against the accused under Section 138 of the NI Act. Accordingly, accused was summoned. Accused appeared, pleaded not guilty and claimed trial. To substantiate its allegations levelled in the complaint, complainant himself entered into the witness box and tendered his evidence by way of affidavit CW-1/A, reiterating the contents of the complaint. In addition to his own statement by way of affidavit Ex. CW-1/A, complainant produced the original cheque as Ex.C-1, return memo as Ex.C-2, legal notice as Ex.C-3, postal receipt as Ex.C-4, return envelope as Ex.C-5, power of attorney as Ex.C-6, arbitration award pertaining to contract No. 2718H as Ex.C-7, arbitration award pertaining to contract No. 2780 as Ex.C-8, agreement of contract No.2780 as Ex.C-9, agreement of contract No.2781 as Ex.C-10 and statement of account as Ex.C-11 & Ex C-12. After tendering the abovesaid documents, complainant closed his evidence. Statement of the accused was recorded under Section 313 Cr.P.C.. All the incriminating evidence brought on record was put to him. Accused pleaded his innocence and alleged false implication. He produced one witness in his defence. After going through the evidence brought on record and hearing the learned counsel for both the parties, learned trial Magistrate, vide his impugned order dated 27.2.2013, held that the complainant has miserably failed to discharge his initial onus. Accordingly, accused was acquitted of the charges framed against him, for the commission of offence punishable under Section 138 of the NI Act. Hence this application by the complainant under Section 378 (4) Cr.P.C., seeking leave to appeal.