Mrs. Daya Chaudhary, J.: - CRM-5590 of 2015

There is a delay of 18 days in filing the application for grant of leave to appeal against judgment of acquittal.

2. Application is allowed as per the grounds mentioned therein and delay of 18 days in filing the application is condoned.

CRM-A-282-MA of 2015

3. The present application has been filed under Section 378(4) of the Code of Criminal Procedure for grant of leave against the judgment of acquittal dated 13.11.2015 passed by the Additional Chief Judicial Magistrate, Palwal, whereby, the accused-respondent has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘NI Act’).

4. A complaint was filed against the accused-respondent under Section 138 of the NI Act stating therein that the accused borrowed a sum of Rs.4,25,000/- from the complainant in the month of February 2012 for a period of two months and in discharge of said liability, the accused issued a cheque bearing No.015860 dated 02.05.2012 for Rs.4,25,000/- from his account in favour of the complainant. At the time of issuance of said cheque, the accused assured the complainant that the cheque would be encashed on its presentation. On his assurance, the complainant presented the cheque for encashment through its banker i.e., State Bank of India, Branch at Escort Nagar, Faridabad but it was returned vide memo dated 08.05.2012 with the remarks “Drawers Signature incomplete”. An intimation in this regard was received by the complainant on 09.05.2012. Thereafter, a legal notice was served by the complainant through his counsel to call upon the accused to pay the amount of cheque in dispute within a period of 15 days from the date of receipt of legal notice but the accused failed to make the payment of cheque in dispute.

5. The complaint was presented on 07.06.2012. In preliminary evidence, the complainant examined himself as CW1 and tendered his affidavit Ex.CW1/A and also tendered documents i.e., Cheque Ex.C1, Memo Ex.C2, Legal Notice Ex.C3, Receipt Ex.C4. The accused was summoned to face trial vide order dated 24.07.2012 and he appeared before the trial Court on 31.10.2012. Thereafter, notice of accusation was served upon the accused. After serving notice of accusation, the complainant examined Akash Garg Assistant Manager as CW1, who proved the cheque Ex.C1, Meena Mehta, Assistant Manager as CW2, who proved cheque return memo Ex.C2 and complainant himself appeared as CW3 and tendered his affidavit Ex.CW3/A. He also proved cheque Ex.C1, Memo Ex.C2, Legal Notice Ex.C3 and Receipt Ex.C4.

6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded on 04.08.2014 wherein the accused denied all the allegations levelled against him.

7. In defence, the accused tendered documents i.e., Ex.D1 copy of complaint, Ex.D2 copy of statement of Sandeep and Ex.D3 copy of order passed in case titled as Sandeep vs. Yogesh.

8. On appraisal of evidence available on record and after hearing counsel for the parties, the trial Court dismissed the complaint of the applicant-complainant and the accused was acquitted of the charge levelled against him.

9. Learned counsel for the applicant submits that the trial Court has acquitted the accused without appreciation of evidence available on record. The version of the complainant has not been believed whereas there was sufficient evidence available on record in support of his version. All the witnesses examined by the complainant proved and corroborated his statement. The cheque in dispute was given to the complainant and the same was dishonoured. There was no reason to disbelieve the evidence produced by the complainant and as such, all ingredients of Section 138 of the NI Act are there, still the accused has been acquitted of the charge. Learned counsel also submits that only on the basis of presumption, the accused has been acquitted of the charge.

10. Heard arguments of learned counsel for the applicant and have also perused the ju