A cheque must represent a legally enforceable debt at maturity; part payments prior to presentation defeat claims under Section 138 of the NI Act.

JUDGMENT :

N. UNNI KRISHNAN NAIR, J.

1. Heard Mr. J Roy, learned Senior counsel appearing for the appellant and Mr. A K Bhuyan, learned counsel for the respondent.

2. The present criminal appeal has been instituted by the appellant assailing the judgment dated 05.12.2013 passed by the learned Judicial Magistrate First Class, Guwahati in complaint case, being C.R. No. 2702^C/2009, dismissing the same.

3. The appellant, herein, had instituted a complaint case before the Court of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati, which was registered as C.R. No. 2702^C/2009 under the provisions of Section 138 of the N.I. Act, inter-alia, praying for conviction of the respondent, herein, under the provisions of of the N.I. Act for dishonour of two cheques issued by the respondent to the appellant, herein.

The learned Trial Court upon considering the issues arising in the said complaint case proceeded on conclusion of the trial vide judgment dated 05.12.2013 to acquit the respondent, herein, from the charge framed against him under Section 138 of the NI Act. Accordingly, the complaint case filed by the appellant, herein, came to be dismissed.

Being aggrieved, the appellant, herein, has instituted the present proceedings.

4. Mr. Roy, learned counsel for the appellant, at the outset, by referring to Ext.7 has submitted that the same would go to establish that the appellant, herein, had from time to time given to the respondent, herein, an amount of Rs.9,81,500/- for being allotted a flat, which was to be constructed by the respondent, herein.

Mr. Roy, learned counsel for the appellant further contends that against the said amount, the respondent, herein, had issued to the appellant three cheques, bearing cheque No. 628467 dated 18.05.2009 for an amount of Rs.3,00,000/-, cheque No. 628468 dated 20.05.2009 for an amount of Rs.3,00,000/- and cheque No. 628469 dated 22.05.2009 for an amount of Rs.3,45,000/-. Mr. Roy, further submits that the balance amount was undertaken by the respondent to be paid by cash. Mr. Roy, learned counsel for the appellant submits that after issuance of the cheque No. 628467 and cheque No. 628468, the respondent had paid in cash an amount of Rs.65,000/- to the appellant on 22.05.2009 and had further deposited an amount of Rs.25,000/- in his account on 25.05.2009. Mr. Roy further submits that a further cheque for an amount of Rs.2,10,000/-, being cheque No. 628467 dated 27.05.2009 was also issued by the respondent to the appellant on 27.05.2009. He submits that in total, out of the amount due to the appellant, the respondent had by way of cash as well as vide cheque dated 27.05.2009 paid an amount of Rs.3,00,000/-.

Mr. Roy, learned counsel for the appellant further submits that the appellant had returned the cheque No. 628469 dated 22.05.2009 for an amount of Rs.3,45,000/- to the respondent. Mr. Roy submits that accordingly a balance of Rs.6,81,500/- was due to the appellant. Mr. Roy submits that the appellant had deposited the two cheques, i.e., cheque No. 628467 and cheque No. 628468 for clearance in his account. However, the same was returned unpaid on the ground of insufficiency of fund. Mr. Roy, submits that two demand notices dated 11.06.2009 and 12.06.2009 were issued to the respondent by the appellant and the same were received by the respondent, herein. He submits that the counsel for the respondent had responded to the said two notices and had taken a plea that the amounts due against the cheque in question were paid in part by the respondent and demanded for return of the cheques in question.

Mr. Roy, learned counsel for the appellant submits that in the above backdrop, the