IMPORTANT POINT
Magistrate must frame points and deal with the matter properly.

Bhangale A.P., J.— This appeal is filed challenging judgment and order dated 5th April 2009 passed by the judicial Magistrate, First Class, Amravati in Summary Criminal Case No. 4426 of 2004 whereby the learned Magistrate has acquitted the respondent of the offence punishable under section 138 of the Negotiable Instruments Act.

2. Heard. Admit. Taken up for final hearing forthwith as per order dated 30th August 2010.

3. Out of cordial relations, respondent demanded hand loan of Rs.60,000 from the appellant which the appellant gave. Though promised, respondent did not repay the amount within three months. Respondent issued post dated cheque of the date 15.7.2004 drawn on State Bank of India, Rajapeth Branch, Amravati for Rs. 60,000 in favour of appellant for discharge of liability. Appellant deposited the said cheque with his banker on due date but it was returned unpaid under memos dated 16.7.04 and 17.7.04 on account of the fact that the respondent had closed the account. Appellant sent legal notice dated 29.7.2004 by RPAD as well as under Postal Certificate calling upon the respondent to make payment within fifteen days. Respondent accepted the notice which was sent under postal certificate but the notice sent by RPAD was returned on 10.8.2004 since the respondent did not claim it. Since the respondent failed to comply with the demand made in the notice, appellant filed complaint under section 138 of the Act before the learned Magistrate on 15.8.2004.

4. Respondent in his statement recorded under section 313 Cr.P.C. denied the claim and in his defence stated that he had obtained hand loan of Rs.7,000 from the complainant in 1997 agreeing to pay interest @ 7% p.a.; he repaid the entire amount together with interest thereon from time to time. According to the respondent, he had given one blank cheque to the complainant by way of security; there was dispute between them on the point of interest and complainant had threatened him that he would settle score and, therefore, false complaint had been filed.

5. Learned Counsel for the appellant contends that impugned judgment and order is not sustainable on account of non-application of mind by learned trial Magistrate to the essential ingredients to constitute offence, punishable under section 138 of the Negotiable Instruments Act. He further criticized the impugned judgment on the ground that findings written against the points framed are contrary to the conclusion drawn by the learned Magistrate.

6. None appeared for respondent. On some dates, Mr. S.J. Kadu, Advocate appeared for respondent, but today he is absent. Learned Counsel for the appellant makes a statement at the bar that he had conveyed to Mr. Kadu about the Court’s intention to dispose of the matter finally as per order dated 30th August 2010.

7. In (Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd.)1 the Apex Court has laid down the following ingredients:

“(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability;

(ii). That the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iii). That the cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by any agreement made with the bank;

(iv) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) The drawer or such cheque fails to make payment or the said amount or money to the payee or the