KULDEEP Vs. MOHAR MAHESH CONSTRUCTION PVT. LTD.

JUDGEMENT

(1.) The respondent was acquitted by the learned trial Court in Complaint Case No. 3616-3 of 10/09 decided on 15.6.2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, in short "the Act". Hence the present appeal by the complainant. The complainant alleged that he being the sole proprietor of the firm, had purchased a Tata Tipper No. 1613, after raising loan from the Bank which was allotted registration No. HP 24B-2014. The respondent company hired his vehicle on contract basis @ 90,000/-per month, which remained deployed with the respondent company for about two months as such they were to pay an amount of Rs. 1,80,000/- to him but did not make the payment but after hot persuasion, respondent company issued cheque No. 929962 dated 26.5.2009 amounting to Rs. 49,500/- in favour of the complainant with an assurance to clear the dues within 2-3 days. Though the amount of Rs. 52,000/- was transferred by the respondent company in his account but the balance was not paid. When the complainant insisted for clearing the balance, they pretended that entire amount stood paid. The cheque aforesaid, when presented for encashment in the Bank, bounced back with the remarks, "insufficient funds". On the receipt of the dishonour memo, a statutory notice was sent to the respondent company by registered post as well as under UPC calling upon them to make the payment within the statutory period but it did not yield any result. Thus the complaint was filed against the company through its Managing Director.

(2.) The notice was issued to the respondent company but no one put in appearance, ultimately NBWs were issued. Pursuant to that, one Shri Mohar Singh Thakur, Director of the respondent company had put in appearance and applied for cancellation of NBWs. He denied that he was the Managing Director of the Company. Neither any allegation was made against him, nor statutory notice of demand was issued to him. Yet the notice of accusation was put to him on 16.1.2010 which he denied.

(3.) To prove his case, the complainant examined CW2 Surinder Kumar with respect to dishonour memo. The complainant himself examined as CW3. He admitted having received an amount of Rs. 52,000/-in his account remitted by the respondent company and for balance amount, a cheque Ext. CW2/A of Rs. 49,500/- was allegedly issued. In cross examination, he stated that the cheque was issued by Mohar Singh Thakur, the Proprietor of the respondent Company.