Dishonour of cheque--Blank cheque issued at the time of joining the committee being run by complainant--Complainant had no financial capacity to pay a sum of Rs.80,000/- --No offence under Section 138 N.I. Act.

Sham Sunder, J.

1. This appeal is directed against the judgment dated 15.7.2005 rendered by the Court of Shri A.S. Grewal, Additional Chief Judicial Magistrate, Ropar, vide which it acquitted accused, Usha Bansal, for the offence, punishable under Section 138 of the Negotiable Instruments Act, 1881 , (hereinafter called as the Act only).

2. The facts, in brief, are that the accused was in need of money and she approached the complainant, and borrowed a sum of Rs.80,000, from him. She promised to return the said amount, to the complainant, on demand. Thereafter, the complainant approached and requested the accused several times to return the amount, but she (accused) put him off on one pretext or the other. Ultimately, the accused issued a cheque bearing No.449545 dated 8.4.2002 of Punjab National Bank, Branch Kurali, in the sum of Rs.80,000, in favour of the complainant. When the complainant presented the said cheque, in his Bank, i.e. Oriental Bank of Commerce, for encashment, the same was dishonoured by the Punjab National Bank with the remarks "insufficient funds". Thereafter, the complainant issued a legal notice dated 8.4.2002 to the accused, but she did not repay the amount of the cheque. Ultimately, a criminal complaint was filed by him.

3. On appearance of the accused, she was supplied the copies of documents, by the trial Court. Notice under Section 138 of the Act, was served upon the accused, to which she pleaded not guilty and claimed trial.

4. The complainant, in support of his case, examined Narinder Kumar Jain, Computer Operator, Punjab National Bank, Kurali, CW1, Dharminder Kumar, Clerk of Oriental Bank of Commerce, CW2, and himself appeared in the witness-box as CW3. Thereafter, he closed his evidence.

5. The statement of the accused under Section 313 Cr.P.C, was recorded, and she was put all the incriminating circumstances, appearing against her, in the evidence of the complainant. She pleaded false implication. She denied that any amount was borrowed by her, from the complainant. She further stated that she never issued any cheque. It was further stated by her, that the cheque was a procured document. In defence, she examined Prem Nath DW 1. Thereafter, the defence evidence was closed by her.

6. After hearing the counsel for the parties and, on going through the evidence, on record, the trial Court acquitted the accused.

7. Feeling aggrieved, the instant appeal, was filed by the complainant appellant.

8. I have heard the counsel for the parties, and have gone through the evidence and record of the case carefully.

9. The counsel for the complainant appellant, at the very out-set, submitted that since the cheque, referred to above, was issued by the accused respondent, in the discharge of her legal liability, in favour of the complainant, as soon as the same was dishonoured, and she refused to repay the amount, she committed the offence, punishable under Section 138 of the Act. He further submitted that as soon as the cheque, in question, was issued and the signatures thereon, were either admitted or proved, a statutory presumption under Section 118 of the Act, could be drawn that the said cheque was made or drawn for consideration on the date, which the said cheque bears. He further contended that the trial Court was wrong in coming to the conclusion that the accused respondent did not borrow an amount of Rs.80,000 from the complainant appellant, nor the cheque was issued for the discharge of legal liability. He further contended that the judgment of the trial Court, being perverse, was liable to be set aside.

10. On the other hand, the counsel for the respondent contended, that it was proved from the statement of Naranjan Lal complainant, that he did not pay any amount of Rs.80,000, to the accused respondent, and, as such, the question of issuance of cheque aforesaid for the discharge of legal liability, by the accused respondent, did not at all arise. He further contended that a statutory presumption