SUNIL KUMAR Vs. MAHAJAN CONFECTIONERS

JUDGEMENT

(1.) THE complainant has come in appeal against the acquittal of respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act) in Complaint No. 73 -I of 1995 vide judgment dated 19.12.2000 of the learned Chief Judicial Magistrate, Hamirpur.

(2.) THE facts in brief that appellant -complainant filed a complaint, under Section 138 of the Act against the respondent on the grounds that complainant had supplied empty bottles of cold drinks to respondent on 6.6.1995 on credit basis and the respondent had promised to make the payment of the cost of empty bottles of cold drinks to the complainant. The respondent issued cheque dated 29.7.1995 for Rs. 43,500/ - to the complainant towards the payment of cost of empty bottles of cold drinks. This cheque on presentation was dishonoured. A notice was issued to the respondent but no reply was received, on these facts, the complainant had alleged that respondent committed an offence punishable under Section 138 of the Act. The learned Chief Judicial Magistrate summoned the respondent under Section 138 of the Act vide order dated 4.7.1996. The notice of accusation was put to the proprietor of respondent on 19.5.1998, under Section 138 of the Act to which he pleaded not guilty and claimed trial. The complainant himself appeared as PW -1. He has also examined CW -2 Rakesh Kumar Jain, CW -3 Ranjit Singh, CW -4 M.L. Chopra, Assistant Manager, CW -5 Rajesh Soni, advocate and PW -6 H.S. Negi, Manager, Indian Overseas Bank. The complainant has also produced cheque Ex.C -1, memo Ex.C -2, copy of notice Ex. CW5/A, postal receipt and acknowledgements Ex. CW5/B and Ex.PW -5/C. The statement of proprietor of respondent was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded his innocence. Respondent has examined DW -1 Uma Sutam. The learned Chief Judicial Magistrate has acquitted the respondent vide judgment dated 19.12.2000, hence this appeal.

(3.) IN order to appreciate the respective contentions of learned Counsel for the parties, relevant part of Section 138 of the Act is reproduced as follows : - 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a persons an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extent to twice the amount of the cheque, or with both : (a) ........................... (b) ........................... (c) ........................... Explanation. - For the purpose of this section, ˜debt or other liability means a legally enforceable debt or other liability. - In the complainant, it has been alleged that complainant supplied empty bottles of cold drinks to respondent and respondent had issued cheque dated 29.7.1995 for Rs. 43,500/ - to the complainant towards the payment of cost of empty bottles of cold drinks. PW -2 Sunil Kumar has stated that he is a businessman and they have a family business. He supplied 510 crates of cold drinks empty bottles worth Rs. 43,500/ - to the respondent and in lieu thereof, the respondent issued a cheque Ex.C -1, which was bounced on presentation. In cross -examination, he has stated that the bottles were supplied by their partnership firm, namely Jain Trading Company, of which he himself, Rakesh, Kanwar Sain Jain and Ashwani are the partners. The complaint was filed by him as partner of the firm. He has no authority on behalf of the firm to file the complaint. Ex.CW5/A is notice dated 29.8.1995. This notice was issued by Rajesh Soni advocate, on the instructions of Sunil Kumar to the respondent. In the notice also, it has been mentioned that empty bottles were supplied by Sunil Kumar for which a cheque amounting to Rs. 43,500/ - was issued by the respondent.