YANGAIN SINGH Vs. VIJAY KUMAR

JUDGEMENT

(1.) By way this revision petition, the petitioner has challenged the judgment passed by the Court learned Sessions Judge, Solan, in Criminal Appeal No. 4-S/10 of 2016, dated 01.10.2016, vide which learned Appellate Court while allowing the appeal filed by the present respondent has remitted the case back to learned trial Court for decision afresh after setting aside the judgment passed by the Court of learned Judicial Magistrate 1st Class, Kandaghat, in case number 234 of 2015, dated 30.12.2015, whereby learned trial Court in a complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act') by the present petitioner had convicted the present respondent for commission of offence punishable under Section 138 of the NI Act and had sentenced him to undergo simple imprisonment for one month and also to pay compensation to the tune of Rs. 2,20,000/- to the complainant.

(2.) Brief facts necessary for the adjudication of the present case are that a complaint under Section 138 of the NI Act was filed by the present petitioner (hereinafter referred to as 'complainant) against the present respondent (hereinafter referred to as 'accused') on the allegations that accused and his mother had approached the complainant to sell their land situated in mauza Nagar Sihauna and an agreement to sell the said land was entered into between the parties, in lieu of which, the accused and his mother received an amount of Rs. 1,00,000/- from the complainant as earnest money. Further as per the complainant, as subsequently the land was not found suitable by the complainant as it was discovered that there was dispute with regard to the said land with other cosharers and litigations were also going on between the parties, the said agreement to sell was cancelled by both the parties with their mutual consent. As the earnest money was not readily available with the accused, accordingly, he promised to repay the earnest money to the complainant within six months. Further as per the complainant on 05.05.2012, accused approached him and requested him to advance him Rs. 10,000/- more on the pretext to discharge some debt and promised to repay the whole amount including Rs. 1,00,000/- received earlier as well as Rs. 10,000/- whenever the complainant demanded. As per the complainant he paid Rs. 10,000/- also to the accused on 05.05.2012 and thereafter, in order to repay the said debt/liability, accused issued a post dated cheque bearing No. 048242, dated 29.10.2012 for an amount of Rs. 1,10,000/- in favour of the complainant drawn at Baghat Urban Co-operative Bank Ltd. Solan, HP. As per complainant when said cheque was presented for valuable encashment, the same was returned by the bank concerned vide memo No. 6976, dated 18.12012 with endorsement "Insufficient Funds". As per complainant, on 09.01.2013, he served a legal notice of demand upon the accused through his counsel by way of Registered AD, which was duly served upon the accused on 10.01.2013. However, even after the service of said notice, the accused failed to pay the cheque amount to him. In these circumstances the complainant approached the Court by filing a complaint under Section 138 of the NI Act against the accused.

(3.) As the learned trial Court found a prima facie case against the accused, notice of accusation was accordingly put to him, to which he pleaded not guilty and claimed trial.