(Surinder Singh, J.) (Oral) - The complainant has filed the instant appeal against the acquittal of the respondent under Section 138 of the Negotiable Instruments Act, 1881, in short “the Act”.

2.Precisely, the case of the complainant is that he was engaged in side business of sale and purchase of shares of the Companies, under the head and style of “M/s. Hi Tech Investments” and the respondent-accused was his customer. It is alleged that on 3.8.1993, the respondent purchased 100 shares of Tisco Company at the rate of 180 per share and his commission was 7.50 per share. As such, the total value of the purchase shares by the respondent was 18750/-. The respondent issued a cheque Exhibit P1 to the tune of rupees 14,750/- drawn on State Bank of India, Shimla Branch and agreed to pay the balance in cash. When the cheque was presented for encashment into the said Bank in the first week of January, 1994 through his Bankers Oriental Bank of Commerce, Shimla, it was returned to the complainant with the endorsement “insufficient funds”. when this fact was brought to the notice of the respondent, he told the complainant to present it again and also assured to pay the balance amount of Rupees 4000/- at the earliest but during the second presentation on 20.1.1994, the cheque was again returned to the complainant with the same endorsement on the very next day. Hence, the complainant sent notice which was received by the respondent. The respondent vide his reply dated 14.2.1994, admitted the aforesaid facts and built up a false story asking him to release his 200 shares. Hence the complaint was filed before the learned trial Court under the aforesaid Section to proceed against the respondent.

3.After the preliminary evidence, the respondent was summoned. Notice of accusation was put to him. He pleaded not guilty and submitted that he has a defense to make. The complainant produced his witnesses to prove his case.

4.The respondent was examined under Section 313 of the Code of Criminal Procedure. He denied any debt liability as alleged. Rather, he raised the defense that in fact, he issued the cheque on 4.8.1993 for rupees 14,750/- on the condition that it would be encashed only on the release of his 200 shares of Tisco Company which were booked by him against cash payment made on 13.6.1993. Since 200 shares were not released, therefore, the payment against cheque was stopped. The respondent did not lead any evidence in defense. After completion of the trial, the learned trial Court acquitted the respondent against which the instant appeal has been filed.

5.I have heard the learned Counsel for the parties and have gone through the evidence on record carefully.

6.It is an admitted case of the parties that the cheque for rupees 14,750/- was issued by the respondent and the cheque bounced for want of sufficient funds. According to the case of the complainant, he had sent the legal notice to the respondent on 21.1.1994 vide registered post and the postal receipts Exhibit P5 to P7 were tendered in evidence. It is pertinent to note that copy of the legal notice alleged to have been sent to the respondent was not placed and proved on record in order to known the contents of notice. However, in reply Exhibit P10 to the aforesaid notice, the respondent has clearly mentioned the fact of booking 200 shares of Tisco Company against cash payment, which were not reimbursed and it was on this under taking that the cheque would be encashed only on the release of shares aforesaid.

7.In his statement before the Court, the complainant has admitted the receipt of full payment of 200 shares of Tisco Company at the rate of rupees 160/- vide receipt Exhibit RX dated 15.6.1993. As CW1, in his cross-examination he has admitted the case of the respondent in so many words. He stated that on 15.6.1993, he had sold 200 shares of Tisco to the respondent at the rate of rupees 160/- per share to him but according to him, he had sent/re