VIPIN SANGHI, J.

1. The present appeal has been preferred against the judgment dated 31.07.2014 whereby the learned Metropolitan Magistrate, Karkardooma Courts, New Delhi in complaint No. 266/13 has acquitted the respondent/accused of the offence under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).

Background:

2. The case of the appellant/complainant, as narrated in the complaint is that the respondent/accused purchased a property from him i.e. property bearing No. B-66, East Nathu Colony, Delhi-110094, and in the discharge of his liability, he made part payment in cash and also issued a cheque bearing No. 509034 dated 12.02.2006 amounting to Rs. 5,00,000/- drawn on Kangra Co-Operative Bank Ltd., A Block, Jagat Puri, Delhi 110051, being the balance payment relating to the aforesaid purchase of property. The said cheque was presented for encashment twice, and on both occasions, same was dishonoured with remarks “insufficient funds”. The appellant served a legal demand notice dated 26.08.2006 to the respondent by courier as well as UPC, but even after receipt of the legal notice, the respondent did not make the payment. So, the present complaint was filed by the appellant under Section 138 of the Negotiable Instrument Act.

3. The accused was summoned. Notice under Section 251 Cr PC was framed on 31.03.2009. The respondent pleaded “not guilty” and claimed trial.

4. Before the Learned MM, the appellant Sh. Bhawish Chand Sharma examined himself as CW-1 in post notice evidence. Appellant filed his evidence by way of affidavit CW1/A. He also proved the cheque in question Ex. CW1/1, the cheque returning memo, Ex. CW1/2, envelope sent through the courier Ex. CW1/3, courier receipt Ex. CW1/4, UPC certificate Ex.CW1/5 and legal demand notice Ex. CW1/6. He also examined Parvesh Sharma, his son as CW-2.

5. The appellant/complainant in his cross examination stated that the property in question was sold to the respondent for a sum of Rs. 20,00,000/- out of which Rs. 15,00,000/- was received in cash and two cheques bearing no. 509032 and 509033 of Rs. 2,00,000/- each on Kangra bank was received at the time of registry. The registered sale deed Ex. CW1/DA showed the value of the property as Rs.4,00,000/-. The two cheques received by the appellant/complainant amounting to Rs.4, 00,000/- in total have been mentioned in the sale deed. He further deposed that the amount of Rs.4,00,000/- was towards sale consideration and volunteered that Rs.1,00,000/- was for building material. He, however, admitted that the presence of building material, and its sale to the accused for Rs.1,00,000/- was not mentioned in the sale deed; the legal notice, and; the complaint.

6. After the conclusion of appellants post summoning evidence, statement of respondent was recorded u/s 313 of the Criminal Procedure Code on 21.03.2013, wherein the respondent/accused stated that the complaint was false and frivolous. He also stated that on 07.02.2006, he had issued two cheques amounting to Rs. 2,00,000/- each - one in the name of the appellant and another in the name of wife of the appellant/complainant in consideration of the purchase amount relating to property bearing no. B-66, East Nathu Colony, Delhi-94, which he had purchased from the appellant/complainant and his wife.

7. Those cheques were shown to the Registrar also by the appellant/complainant at the time of the registration of documents relating to the said property. After the registration of documents, these cheques were returned to him by the appellant, as the sellers submitted that they did not have any bank account. On return of the same, he made a payment of Rs.4,00,000/- in cash to the appellant/complainant. The respondent stated that some electricity dues were remaining outstanding relating to the property in question. To provide a guarantee for payment of the same (as the appellant/complainant was not clearing his dues), he had issued a blank cheque containing his signature and the figure of