BRIJ MOHAN Vs. VIRENDRA BHANDARI

JUDGEMENT

(1.) By way of this application preferred under Section 378(4) Cr.P.C., the applicant complainant seeks leave to file an appeal against the judgment dated 23.10.2013 passed by the learned Special Judicial Magistrate, Negotiable Instruments Act Cases No.2, Udaipur in Regular Criminal Case No.4083/2009 whereby, the respondent Virendra Bhandari was acquitted from accusation under Section 138 of the N.I. Act.

(2.) I have heard and considered the arguments advanced at the Bar and have gone through the impugned judgment and the original record.

(3.) Brij Mohan was the original complainant who preferred the complaint against the respondent Virendra Bhandari under Section 138 of the N.I. Act with the allegation that the accused had taken loan from the complainant, for the repayment whereof, he advanced two cheques nos.003707 dated 26.9.2008 and 003708 dated 26.9.2008, each for a sum of Rs.1 lakh to the complainant. The cheques were presented for encashment but were dishonoured on account of lack of funds. The complainant proceeded to give a notice to the accused demanding payment of the cheque amount. However, the accused failed to respond to the notice. Upon this, the complaint was presented in the Court. The trial Court acquitted the accused from accusation holding that the complainant failed to prove that any loan had ever been advanced to the accused. The complainant alleged in his complaint that the loan had been given to the accused was a personal loan. However, the amount of loan or the date on which it was extended, was not mentioned in the complaint. The same was the position in the evidence affidavit of the complainant wherein also, neither the amount of loan nor the date of advancement thereof was clarified. In cross examination, the complainant admitted that the loan amount had been given to the accused from his personal funds. He was an income tax assessee. He claimed to have given loan to the accused by cheques. In the next breath, he admitted that he did not give the loan to the accused from his own funds but rather the loan was advanced from the firm's funds. He further admitted that he was not having a money lending license. The accused took a defence that previously, he and the complainant used to run a joint business and in relation thereto, blank signed cheques were lying with the complainant which he later on misused.