GEETA DEVI Vs. SURINDER SINGH

JUDGEMENT

(1.) Judgment dated 6.12.2018 passed by learned Additional Sessions Judge (I), Shimla, Himachal Pradesh in Cr. Appeal No. 12-S/10 of 2018, affirming judgment/order of conviction and sentence dated 11.1.2018/26.2.2018, passed by learned Judicial Magistrate 1st Class, Court No. VI, Shimla, Himachal Pradesh in Case RBT No. 266-3 of 2015/14, whereby petitioner-accused (hereinafter, 'accused') came to be convicted for the commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter, 'Act'), is under challenge in the instant proceedings filed under S.397 CrPC filed by the accused, seeking therein her acquittal, after setting aside aforesaid judgments/order of conviction and sentence.

(2.) Briefly stated, facts of the case as emerge from the record, are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under S.138 of the Act in the court of Judicial Magistrate 1st Class, Court No. VI, Shimla, alleging therein that in the year 2014, accused approached him seeking financial help of Rs.1,50,000/-, for making payments in other cases instituted against her under S.138 of the Act, which at the relevant time were pending in different courts. Complainant provided a sum of Rs.70,000/- on 16.4.2014 and another sum of Rs.80,000/- on 25.4.2014, after borrowing the same from his friends. Though the accused promised to repay the same within a period of one month, but subsequently, she with a view to discharge her liability, issued cheque bearing No. 076049 dated 18.6.2014 (Ext. CW-1/A) amounting to Rs.1,50,000/- in favour of the complainant, drawn on account No. 20163042399, maintained by her with the Allahabad Bank, Shimla. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused, vide memo dated 26.7.2014 (Ext. CW-1/B) After having received aforesaid memo, complainant served accused with legal notice (Ext. CW-1/C) calling upon her to make payment of Rs.1,50,000/- within the stipulated period but since the accused failed to make good the payment within the period prescribed in the legal notice, complainant was compelled to initiate proceedings under S.138 of the Act.

(3.) Learned Judicial Magistrate 1st Class, vide its judgment dated 8.5.2017, dismissed the complaint and acquitted the accused. Complainant, being aggrieved and dissatisfied with the aforesaid judgment of acquittal recorded by learned Court below, approached this Court by way of Criminal Appeal No. 295/2017, on the following grounds: