SHIV KUMAR MEHTA Vs. NARESH KUMAR GUPTA

JUDGEMENT

(1.) This petition has been filed in 2009 and due to non furnishing of fresh particulars of respondent, service could not be effected on respondent till today. From perusal of file, it reveals that on the last two consecutive dates viz. 3.7.2013, 19.7.2013, no one had appeared. Even today also, no one has appeared, so Court is constrained to decide the application in absence of counsel for petitioner. Applicant was being represented through Mr. J.P Nanda, Advocate.

(2.) The instant application for grant of leave to file acquittal appeal against the order dated 26th March, 2009 passed by Sub Judge, Special Railway Magistrate, Jammu in the Complaint titled, "Shiv Kumar Mehta v. Naresh Kumar Gupta" , by which the Complaint filed by the appellant under section 138 of Negotiable Instruments Act, 1881 came to be dismissed in default for want of appearance of the complainant, has been filed by applicant/complainant on the ground that, the order passed by the Judicial Magistrate Railway Court, Jammu is against the law and the same is liable to be set aside. The accused owned a sum of Rs. 1 lac to the applicant and when the appellant approached the accused for refund of the borrowed amount, the accused issued a Cheque bearing No. 706540 dated 27th July, 2007 for an amount of Rs. 1 lac to withdraw from State Bank of India, Branch office, Bari Brahmana having Account No. 010900040. The appellant presented the aforementioned Cheque before his Bank, the Citizen Co-operative Bank Ltd, Branch Office New Plot, Jammu for clearance and the same was dishonoured by the accused Bank on 26th December, 2017 along-with Memo dated 26th December, 2007 with remarks "Refer to Drawer". The accused had promised the appellant that the Cheque will be en-cashed as and when the same was presented, but the same has been returned to the appellant with endorsement that "Refer to Drawer".

(3.) The appellant issued a registered notice through his counsel dated 22nd January, 2008 posted on the same date intimating the accused that the Cheque amounting Rs. 1 lac issued by the accused/respondent has been dishonoured by the Bank. The appellant requested the accused/respondent to make the payment of Rs. 1 lac within a period of fifteen days from the date of receipt of legal notice. The said notice was served upon the accused/respondent and the same was received by the accused/respondent. The accused/respondent has not complied with the request in the notice dated 22nd January, 2008 and has not paid the cheque amount mentioned the notice. Thereafter, the appellant filed the Complaint under section 138 of the Negotiable Instruments Act, 1881 and also under Section 420 RPC, but on 26th March, 2009, the above mentioned Complaint was dismissed by the Trial Court in default for non-appearance of appellant.