ISHWAR DUTT SHARMA Vs. KAMESHWAR VERMA

JUDGEMENT

(1.) The present criminal appeal, under Section 378 of the Code of Criminal Procedure, is maintained by the appellant/complainant (hereinafter to be called as "the complainant") , against the order dated 23.02.2017, passed by learned Judicial Magistrate 1st Class, Court No. 5, Shimla, H.P. in complaint No. 279-3 of 2016, whereby the complaint, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as "N.I. Act") filed by the complainant has been dismissed in default.

(2.) The key facts, giving rise to the present appeal are that the complainant filed a complainant against the respondent/accused (hereinafter to be called as "the accused") under Section 138 of the N.I. Act, wherein he alleged that in March, 2014, the accused approached to him to borrow a sum of Rs. 1,50, 000/-, since the accused was in dire need of money for expansion of his business. The complainant lent him a sum of Rs. 50, 000/- on 19.03.2014 and Rs. 1,00, 000/- in June, 2014 with the condition that the same will be returned back by the accused within few months. Though an amount of Rs. 40, 000/- has been paid to the complainant upto August, 2014, however for the balance amount of Rs. 1,10, 000/-, the accused issued a cheque, bearing No. 054224, dated 20.07.2016 drawn at Central Bank of India, Branch Parwanoo, District Solan, H.P. in favour of the complainant. When the said cheque was presented by the complainant for clearance with his banker i.e. State Bank of India, Branch at Sanjauli, Shimla-6 on 30.07.2016, the cheque was returned back to him alongwith memo of dishonour and with the endorsement "Account closed". Thereafter, the complainant issued a registered notice, dated 18.08.2016 to the accused. Despite notice the accused failed to make the payment to the complainant within the stipulated period of 15 days from the receipt of the notice. Resultantly, the complainant filed a complaint against the accused under Section 138 of N.I. Act before the learned trial Court and the summons were issued for the service to the accused on 23.02017, however on said date despite the matter has been called repeatedly, no one has put in appearance on behalf of the complainant, hence the complaint was dismissed in default.

(3.) I have heard the learned counsel for the parties and gone through the record carefully.