KANAHIYA LAL GHAMANDI LAL Vs. SUBHASH

JUDGEMENT

(1.) The appellant, M/s Kanahiya Lal Ghamandi Lal, is aggrieved by the judgment dated 29.10.2007 passed by Additional Sessions Judge No.1, Sri Ganganagar, whereby the learned Judge has quashed and set aside the judgment dated 28.3.2005 passed by Additional Chief Judicial Magistrate, Sri Ganganagar. Vide judgment dated 28.3.2005, the learned Magistrate had convicted the respondent, Subhash, for offence under Section 138 of the N.I.Act ('the Act' for short), and had sentenced him to one year of simple imprisonment, and had imposed a fine of Rs.2,75,000/-, and further directed that the fine amount shall be paid as compensation to the complainant firm. However, vide judgment dated 29.10.2007, the judgment dated 28.3.2005 has been quashed and set aside, and the respondent accused, Subhash, has been acquitted.

(2.) Briefly, the facts of the case are that according to the complainant firm, Subhash had opened an account with the firm for selling of agricultural products; for this purpose, there were monetary transactions between the firm and Subhash. Moreover, Subhash had requested the firm to give loans to his father, Kasi Ram, which he would repay. Thus, according to the firm, accused respondent, and his father had taken loans from the firm. As on 30.9.2002, the loan amount was Rs.1,98,700/-. The loan amount was entered in the account books (bahi). Moreover, according to the complainant between 4.10.2002 and 9.11.2002, the accused-respondent had taken a further loan of Rs.7,785/-. Thus, he owed a total of Rs.2,06,485/-. The complainant further claimed that on 29.11.2003, the accused-respondent had sought a loan of Rs.50,000/-. Thus, the accused respondent owed a grand total amount of Rs.2,56,485/-. In order to repay this loan, the accused respondent issued two cheques in favour of the firm namely; cheque No.0402982 dated 10.12.2003 for an amount of two lacs rupees, and another cheque, bearing cheque No.0402979 dated 18.12.2003 for an amount of fifty thousand rupees. But, when these cheques were presented for encashment, they were dishonoured by the bank on the ground of insufficient fund. Therefore, the firm sent a legal notice to the accused respondent. However, despite the service of notice, the accused respondent did not repay the loan amount. Hence, the complaint under Section 138 of the Act.

(3.) In order to buttress its case, the firm examined the proprietor of the firm, Krishan Sachdeva (P.W.1), as a witness, and submitted seven documents. In defence, the accused respondent examined two witnesses including himself. After going through the oral and documentary evidence, vide judgment dated 28.3.2005, the learned Magistrate convicted and sentenced the accused respondent as mentioned above.