Important Point – Unmerited order of acquittal cannot be sustained.

S.P.GARG, J.

1. The instant appeal has been preferred by the appellant – Arvind Kumar Minhas to impugn a judgment dated 29.06.2013 of learned Metropolitan Magistrate in Complaint Case No.456/2010 by which the respondent – Neeraj Kumar was acquitted of the charge under Section 138 Negotiable Instruments Act. The Respondent put appearance on some dates pursuant to the notice issued. Subsequently, he opted not to appear and contest.

2. Briefly stated, facts of the case were that a complaint case under Section 138 Negotiable Instruments Act was filed by the appellant against the respondent. It was averred that in February, 2009 the respondent had approached him for a friendly loan of Rs. 5 lacs for short duration.

Accordingly, the complainant gave him a sum of Rs. 5 lacs through various cheques with the assurance that it would be returned within time. In October, 2009, the respondent was requested to repay the loan amount. He sought 2 – 3 months time to make the payment. Rs. 50,000/-were paid thereafter on various occasions. It is further averred that the respondent had issued a cheque for a sum of Rs. 4.5 lacs on 07.09.2010. However, on presentation the cheque was returned dishonoured by the bankers with the remarks “Funds insufficient”. Legal notice was served upon the respondent on 16.11.2010; there was no response to it.

3. In his pre-summoning evidence, the appellant filed evidence by way of affidavit. By an order dated 13.01.2011 cognizance was taken and the respondent was summoned to face trial for commission of offence under Section 138 Negotiable Instruments Act. In response to notice under Section 251 Cr.P.C., the respondent denied his liability to make the payment. The appellant examined himself as CW-1. In 313/281 Cr.P.C. statement, the respondent denied his liability and examined himself as DW-1 in defence. The trial resulted in respondent’s acquittal as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred by the appellant.

4. In response to the notice given under Section 251 Cr.P.C., the respondent had admitted issuance of cheque in the sum of Rs. 4.5 lacs drawn on State Bank of India, Tis Hazari Courts, Delhi, in favour of the appellant. He further admitted that the said cheque on presentation was dishonoured. He admitted the receipt of legal demand notice. He claimed that as per his detail or estimate, he was to pay Rs. 60,000/--Rs. 70,000/-to the complainant and it would be paid in due course. The respondent, however, did not elaborate as to how as per his own calculation, Rs. 60,000/--Rs. 70,000/-were due.

5. While appearing as CW-1, the appellant reiterated his version averred in the complaint by way of affidavit (Ex.CW-1/A); documents (Ex.CW-1/1 to Ex.CW-1/6) were duly proved. In the cross-examination, the appellant informed that Rs. 5 lacs were given by him to the respondent on various occasions through various cheques. He had also given Rs. 3.6 lacs as a loan to the respondent through cash which was subsequently returned. He admitted receipt of Rs. 50,000/-out of Rs. 5 lacs on different occasions. Material facts stated by the appellant remained unchallenged in the cross-examination. The respondent did not deny the issuance of cheque. He also did not put any specific question if after the issuance of the demand notice, he had made payment of the cheque amount to the appellant, and if so, on what dates and by what mode.

6. In 313 Cr.P.C. statement, the respondent came up with a new plea claiming that he had already made the payment to the complainant towards the satisfaction of friendly loan that he had taken. He further claimed that the cheque in question was issued as a ‘security’ and despite the entire payment made, the appellant did not return it. Again, the respondent did not give specific dates when the loan was discharged.

7. In his defence evidence as DW-1, he admitted receipt of friendly loan of Rs. 5 lacs from the appellant. He, however, claimed that out of the said amo