IMPORTANT POINT
(1) Incriminating circumstances, regarding which no explanation has been called from accused, cannot be used against him.
(2) Dishonour of cheque – Unless part payment is endorsed on cheque as per Section 56 of NI Act, complaint under Section 138 of NI Act would not be maintainable once part payment is made by accused.

JUDGMENT

The present appeal is directed against judgment dated 27.09.2018 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 Section 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 Section 138 of the NI Act against the respondent/accused alleging therein that the accused had issued two cheques dated 10.03.2016 for an amount of Rs. 2,00,000/- and Rs.50,000/- 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 dated 31.05.2016. 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 dated 05.05.2016, the learned trial court issue the process against the respondent and on 05.10.2016, upon appearance of the accused, his plea under Section 242 of J&K Cr.P.C. was recorded. In his statement recorded under Section 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/-, 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/- 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.

4. The complainant besides examining himself as a witness also examined PW-Mohd Yaqoob, Assistant Manager JK Bank Batote and PW-Gourav Verma, Post Master in support of his case. The learned trial court did not record the statement of the accused under Section 342 of J&K Cr.P.C. In this regard, it was observed by the trial court that there is no requirement of recording such statement. However, the accused/respondent, examined three witnesses, namely, DW-Safiq Ahmad, Mond Amin and SHO Diljit Singh in defence.

5. The learned trial court upon appreciation of the evidence on record came to the conclusion that the cheques, which are subject matter of the complaint, have been issued by the respondent/accused in favour of the appellant/complainant in discharge of his liability towards him. It was also concluded by the learned trial court that these cheques were dishonoured by the Banker on account of insufficiency of funds in the account of the accused/respondent. The trial court further recorded a finding that notice of demand was served upon the respondent/accused. However, on the basis of the evidence produced by accused in defence, the learned trial court, came to the conclusion that the accused has been able to probabilize his defence that he has entered into a compromise with the complainant after issuance of the cheques and in pursuance of the said compromise, he had paid the amount in cash to the appellant in presence of the Police. Accordingly, the accused/respondent has been acquitted and the complaint has bee