IMPORTANT POINT
Cheque given as security does not come within purview of Section 138 of Negotiable Instruments Act, 1881.

Daya Chaudhary, J.— This is an application under Section 378(4) Cr.P.C for grant of leave to appeal to challenge the judgment of acquittal dated 9.12.2009 passed by the Chief Judicial Magistrate, Hisar in complaint filed by the applicant under Section 138 of the Negotiable Instrument Act. Briefly, the facts of the case are that respondent Krishan Kumar obtained a loan of Rs.45,000 from the applicant Society by executing an agreement and an undertaking from his employer to recover and deduct the amount in monthly instalments along with interest to be calculated at half yearly rests. Subsequently, the respondent did not adhere to repayment of the instalments of the Society and violated the terms and conditions of the agreement. The cheque issued by the respondent was presented for encashment and same got dishonoured. A complaint was filed by the complainant-Society and vide judgment dated 9.12.2009 passed by the Chief Judicial Magistrate, Hisar, the same was dismissed and the respondent was acquitted of the charge. The present Cri. Misc. No.336-MA of 2010 application under Section 378(4) Cr.P.C has been filed for grant of leave to file appeal on the ground that the respondent was acquitted of the charge by erroneous finding and without proper appreciation of evidence. The applicant-Society served a legal notice before filing of the complaint but the respondent choose not to file any reply within the prescribed period and simply denied the allegations as per his statement under Section 313 Cr.P.C taken during trial.

2. Learned counsel for the applicant also submits that as per terms and conditions of the agreement, the respondent submitted some cheques and those cheques could have been used and the cheques were used by the applicant as per terms and conditions of the agreement. Hence, the ingredients of Section 138 of the Negotiable Instruments Act have been complied with and still, the respondent has been acquitted of all the charges.

3. Learned counsel for the respondent submits that the cheques, in dispute, were given to the applicant-Society as a security and the signatures on the cheques were proved but the handwriting upon the cheques was not proved. A categorical finding has been recorded by the trial Court and case against the respondent could not be proved. Hence, the complaint had rightly been dismissed.

4. I have heard the arguments of learned counsel for the parties and have also gone through the judgment of the trial Court, as well as, other documents on file.

5. Admittedly, the loan was sanctioned in favour of the respondent and there was an agreement between the applicant/complainant. As per the agreement, the respondent was to re-pay the loan amount in monthly instalments from his salary. As per allegations in the complaint, the respondent issued an account payee cheque bearing Cri. Misc. No.336-MA of 2010 No.310981 of State Bank of India, Hisar dated 19.7.2002 for a sum of Rs.47,000 from his Saving Bank Account No.57179. On presentation of the said cheque before the Bank, it was dishonoured and was returned with the remarks “insufficient funds.” A legal notice was also served upon the respondent by the applicant/complainant. Complaint was filed. After recording statement of both sides, the Chief Judicial Magistrate, Hisar vide judgment dated 9.12.2009 acquitted the respondent from the charges on the ground that blank cheque which was given as security to the complainant was written with different shaded writing instruments of different colour which was also not found in the handwriting of the respondent. The case against the respondent could not be proved beyond reasonable doubt and he was acquitted of the charge. The trial Court also observed that the loan amount was Rs.50,000 and was released on three different dates which was to be repaid in 45 monthly instalments of Rs..1,500 each. The cheque was stated to have been issued for an amount of Rs.47,000, whereas, the respondent made a payment of Rs. 3