IMPORTANT POINT
Liability should be in relation to transaction in respect whereof cheque given, and cannot relate to some other independent liability.

Vipin Sanghi, J.—After hearing learned counsel, leave granted.

2. Let the appeal be registered and numbered.

Crl.A. No. 729/2015

3. I heard learned counsel finally at the admission stage with their consent and reserved judgment. Accordingly, I now proceed to dispose of the appeal.

4. The present appeal is directed against the judgment and order dated 26.05.2014 passed by Sh. Vikram, MM-03, South-West District, Dwarka Courts, Delhi in CC No.1798/2014 under Section 138 of Negotiable Instruments Act (NI Act). The respondent/accused was acquitted by the impugned judgment and the complaint preferred by the appellant has been dismissed.

5. The case of the complainant, as set out in the complaint is that the complainant is a member of the National Stock Exchange (NSE) of India, dealing in capital market. Accused No. 1 is the name of a business enterprise of a Hindu Undivided Family (HUF), dealing in capital markets, through accused no. 2, its Karta. The complainant claims that at the request of accused no. 1 through accused no. 2, and in consideration of issuance of a cheque bearing No. 501416 dated 22.6.96 for Rs. 14 Lacs drawn on Oriental Bank of Commerce, Tagore Garden Branch, New Delhi – 110 027, and deposit of certain shares with the complainant as security, the accused were allowed to conduct the sale and purchase of shares on credit basis with the complainant, with the understanding that the aforesaid shares and cheque can be encashed by the complainant, in case of failure of the accused to meet its liability if and when it arises due to the share transactions undertaken by the accused through the complainant. The accused conducted several transactions of shares with the complainant as per the detailed bills and statement of Accounts placed on record, and more than Rs. 14 Lacs were found payable and outstanding against the accused. Hence as per the request of the Accused, the complainant presented the said cheque for encashment to its bank, i.e. the Bank of India, Rajouri Garden, New Delhi (J-2/1, B.K.Dutta Market), New Delhi – 27 on 25.7.96 and the said cheque was dishonoured and returned unpaid due to “Insufficient Fund” by the Accused”s Banker Oriental Bank of Commerce, Tagore Garden Branch, New Delhi – 110 027. An intimation in this regard vide Bank advice dated 27.7.96 along with cheque Return memo and said cheque were received by the complainant through its Bank on 27.7.96.

6. On their failure to pay the outstanding amount, a statutory notice dated 08.08.1996 was served upon the accused. The accused failed to pay the amount of the cheque within the prescribed statutory period. Accordingly, the complainant preferred the complaint under Section 138 NI Act through Sh. Dilip Kumar Agarwal, a Director duly authorised by its Board of Directors. The complainant had claimed that the security cheque of Rs.14 lacs was given to meet the liability which was likely to arise in future, and on the date of presentation there was a liability of more than Rs.14 lacs. The complainant claimed that the cheque was presented with prior notice to the accused.

7. Upon being summoned, the accused entered appearance. The accused was served with the notice on 08.10.1998 under Section 251 CrPC for the offence punishable under Section 138 NI Act, to which the accused pleaded not guilty, and claimed trial. The parties led their respective evidence.

8. Sh. Dilip Kumar Agarwal examined himself as CW-1 and Sita Ram Pratap was examined as CW-2. The statement of accused no. 2 was recorded under Section 313 Cr PC. He denied all the incriminating evidence. He stated that the cheque was not issued to discharge any liability and that the complaint was false. He claimed that a blank cheque had been issued to the complainant. The accused opted to lead defence evidence. The accused summoned Gautam Gupta, Asstt. Manager of NSE as DW-1 and accused No.2 examined himself as DW-2.

9. The learned MM acquitted the accused on the premise that the cheque in ques