Important Point – Non – filing of ITR by appellant during relevant years does not lead to creation of a doubt with regard to one’s financial capacity.

VIPIN SANGHI, J.

1. The present leave petition is directed against the judgment dated 28.04.2015 passed by the learned MM (S)-01, NI Act, Saket Courts in CC No. 5206/01, whereby the respondent/ accused has been acquitted of the offence under Section 138 of Negotiable Instruments Act on the complaint of the petitioner.

2. The submission of the petitioner is that the loan taken by the accused had been acknowledged by him in a Memorandum of Settlement (MOS) dated 15.10.2010 (Ex. CW-1/1); the receipt executed by the accused on the same day i.e. 15.10.2010 (Ex. CW-1/X), and; the promissory note dated 15.10.2010 (Ex. CW-1/2 colly). The cheque dated 15.06.2011 was issued towards repayment of the loan as recorded in the MOS dated 15.10.2010. Despite this being the position, the Trial Court has travelled into a wholly unnecessary area of inquiry, by inquiring into the financial capacity of the complainant. On this aspect, it is submitted that during his cross examination, the complainant had stated that he was doing his business at the time of grant of loan and his saving was Rs.50,000/- p.m.

3. Learned counsel points out that the defence of the accused was that he had taken loan from one Manoj Kumar, which he had allegedly repaid. The accused had claimed that the cheque in question had been given to Manoj Kumar towards security, which had been misused by the complainant. Neither Manoj Kumar was produced, nor the taking of loan from Manoj Kumar was evidenced, much less, the return of loan was evidenced. It was not explained as to why the cheque was not taken back from the so-called Manoj Kumar when the loan taken from him was allegedly repaid, and why the accused took no steps if the cheque was not returned by Manoj Kumar even though the loan was allegedly repaid.

4. In my view, the present is a fit case for grant of leave as the impugned judgment appears to be laconic. Leave granted.

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5. Let the appeal be registered and numbered.

6. With the consent of parties, the appeal is taken up for hearing today itself.

7. The present appeal is directed against the judgment dated 28.04.2015 passed by the learned MM (S)-01, NI Act, Saket Courts in CC No. 5206/01, whereby the respondent/ accused has been acquitted of the offence under Section 138 of Negotiable Instruments Act on the complaint of the petitioner. The case of the appellant was that the complainant and the accused run their shops in the same market and they had cordial relationship. About 3-4 years prior to filing of the complainant, the shop of the accused was engulfed in a fire, and it was completely gutted. The goods of the accused were also burned. In that background, the accused approached the complainant for a loan of Rs.3 lacs and assured him to repay the loan within one year with interest @ 18% p.a.

8. The complainant advanced a loan of Rs.3 lacs in cash to the accused. Thereafter, the accused kept taking further loans and thus a total amount of Rs.7.30 lacs was outstanding towards the complainant by the accused. In respect of the said outstanding liability, the parties recorded a MOS on 15.10.2010 (Ex.CW-1/1), wherein the accused acknowledged the liability to pay the sum of Rs.7.30 lacs to the appellant. In the MOS itself, the accused acknowledged delivery of the post dated cheque in question. The accused also executed the receipt for the said amount on the same day i.e. 15.10.2010 (Ex. CW-1/X) and a promissory note for the same amount, on the same day (Ex. CW-1/2).

9. Simultaneously, the accused also issued the cheque in question drawn in favour of the appellant for Rs.7.30 lacs – which was a post dated cheque dated 15.06.2011. The case of the appellant was that when the said cheque was presented for payment, it was returned with the remark “account closed” vide memo dated 28.06.2011. Consequently, a demand notice was issued dated 15.07.2011 to the accused. However, the accused failed to make payment of the outstanding amount.