A C GUPTA Vs. RENU GAUTAM

JUDGEMENT

(1.) This appeal has been preferred by the appellant/complainant (hereafter referred to as 'the appellant') against the judgment dated 12-12-1997 passed by the learned Judicial Magistrate (III), Shimla whereby the respondent/accused (hereafter referred to as 'the respondent') has been acquitted of the accusations under Section 138 of the Negotiable Instruments Act.

(2.) The case of the appellant against the respondent is that the respondent raised a loan of Rs. 50,000.00 from the appellant. For repayment of the loan she issued cheque No. 064558 dated 3-5-1995 drawn on Central Bank of India, Shimla. On presentation for encashment, the cheque was received back by the appellant on 20-5-1995 with the remarks "Insufficient funds" with the result that the cheque could not be encashed. The appellant thereupon issued a registered notice dated 3-5-1995 with a copy sent under the Certificate of Posting to the respondent requesting her to make the payment within fifteen days of the receipt of such notice. The notice sent through Registered Post was received back by the appellant as 'unclaimed' but the copy of the notice sent through U.P.C. was duly served on the respondent. However, the respondent failed to make the payment within the prescribed period. The appellant, therefore, filed a complaint against the respondent wherein she was tried on the accusations under Section 138 of the Negotiable Instruments Act (hereafter referred to as 'the Act'). On consideration of the evidence brought on record, the learned trial Magistrate acquitted the respondent by the impugned judgment on the ground that the firm of which the respondent is a partner and for which she acted as a partner, was not made a party - accused in the complaint and there is no allegation that the respondent at the material time was in charge of and responsible for the conduct of the business of the firm. Hence, this appeal by the appellant.

(3.) I have heard the learned counsel for the parties and have also gone through the records.