QASIM ALI BHUTTO Vs. ABDUL AZIZ

JUDGEMENT

(1.) The present appeal is directed against judgment dtd. 27/9/2018 passed by the learned Judicial Magistrate 1st Class (Special Mobile Magistrate [Electricity]), Batote (hereinafter to be referred as "the trial Court"), whereby the respondent has been acquitted of offence under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the NI Act").

(2.) It appears that the appellant/complainant had filed a complaint under Sec. 138 of the NI Act against the respondent/accused alleging therein that the accused had issued two cheques dtd. 10/3/2016 for an amount of Rs.2,00,000.00 and Rs.50,000.00 in favour of the appellant/complainant in order to liquidate the outstanding amount, which the respondent/accused owed to the appellant/complainant. It was pleaded by the complainant that the accused had purchased building material from him and in order to liquidate the part payment on account of cost of the building material, the respondent had issued the aforesaid cheques in favour of the appellant/complainant. It seems that when these cheques were presented for encashment by the appellant/complainant with his banker, the same were returned unpaid on account of insufficiency of funds vide memo dtd. 31/5/2016. The appellant/complainant is stated to have served a legal notice dated 06.06.02016 upon the respondent/accused asking him to make the payment of the cheque amount to him, but the accused/respondent failed to do so, which ultimately resulted in filing of the complaint before the learned trial court.

(3.) Vide order dtd. 5/5/2016, the learned trial court issue the process against the respondent and on 5/10/2016, upon appearance of the accused, his plea under Sec. 242 of J&K Cr.P.C. was recorded. In his statement recorded under Sec. 242 of J&K Cr. P.C., the respondent/accused, while admitting issuance of the cheques as also his liability to the tune of Rs.2,88,000.00, submitted that he had asked the complainant/appellant to wait for 5/7 days but the complainant/appellant held up his vehicle, whereafter he paid an amount of Rs.50,000.00 to him in presence of SHO, Chanderkote, DW-Diljit Singh. He also stated that a further amount of Rs.2.00 lacs was paid by him to the complainant/appellant after withdrawing the same through ATM. According to the accused, the SHO had assured him that the complainant would return the cheques, but instead of doing so, he filed a complaint against him.