BUDH DEV Vs. DES RAJ

JUDGEMENT

(1.) By way of this appeal, appellant has challenged the judgment, dated 12th January, 2010, passed by the Court of Judicial Magistrate 1st Class, Court No.(I), Amb, District Una, H.P. in complaint No. 255-I-2005, titled as Budhdev v. Des Raj , vide which a complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 was dismissed.

(2.) Mr. N.K. Thakur, learned Senior Counsel, for the appellant has drawn attention of this Court to the evidence on record and by referring to the same has submitted that apparently there is perversity in the judgment passed by the learned trial Court as certain findings recorded in the judgment are contrary to the record. Learned Senior Advocate has pointed out that while dismissing the complaint, so filed by the appellant, it has been held by the learned trial Court that complainant was not even aware of the date when he had lend the amount to the respondent, whereas a perusal of his affidavit, tendered in evidence, demonstrated that it stood mentioned therein as to on what date the money was so lent. He further argued that the presumption contemplated in Section 139 of the Act has also not been appreciated in its correct perspective by the learned trial Court because when it stood proved on record that there was a cheque which was dishonoured and the same was bearing signature of the respondent, then onus was upon the respondent to have had proved as to why he was not liable to honour the cheque.

(3.) Faced with this situation, Mr. Gaurav Gautam, learned counsel for the respondent submits that it will be in the interest of justice that rather than this Court re-appreciating the evidence, the impugned judgment be set aside and the matter be remanded back to the learned trial Court for adjudication afresh so that both the parties get ample opportunity to put forth their respective cases before the learned trial Court.