The importance of proving legal liability and the source of the loan in cases of dishonor of cheques, and the significance of specific dates and documentation in establishing the validity of the loan.

JUDGMENT :

HARNARESH SINGH GILL, J.

CRM No.4119 of 2016

1. The present application under Section 5 read with Section 14 of the Limitation Act has been filed by applicant, Vinod Kumar for condonation of delay of 307 days in filing the application seeking special leave to appeal.

2. It has been pointed out by the learned counsel for the applicant that under bonafide impression, the appeal was filed in the Court of Sessions at Sri Muktsar Sahib, on 13.03.2015, which was later on declared not maintainable in view of the Full Bench decision of this Court in M/s Tata Steel Ltd. vs. M/s Atma Tube 2013 (2) RCR (Criminal) 1005 and was dismissed by the learned Additional Sessions Judge, Sri Muktsar Sahib, on 17.11.2015. The contents of the present application are supported by an affidavit.

3. Keeping in view the above facts and the law on the subject that rather denying hearing on technicalities, the case be heard on merits, the present application is allowed and the delay of 307 days in filing the application seeking leave to appeal, is condoned.

CRM-A-208-MA of 2016

4. Applicant has filed the present application under Section 378(4) of the Code of Criminal Procedure seeking special leave to file appeal against the judgment dated 23.01.2015 passed by the learned Additional Chief Judicial Magistrate, Sri Muktsar Sahib, vide which the respondent-accused has been acquitted of the notice of accusation served upon him in a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, 'N.I.Act').

5. The case set up by the applicant in the complaint was that the respondent had taken a friendly cash loan of Rs.2 lakh and in order to discharge his legal liability, the respondent had issued cheque bearing No.088403 dated 02.03.2013, amounting to Rs.2 lakh, but the said cheque was got dishonoured due to ‘insufficient funds’. A legal notice was issued to the respondent to make the payment, but to no avail.

6. The following point had been carved out by the trial for determination:

“Whether on 2.3.2013, the accused Sandeep Singh in discharge of his legal liability issued cheque bearing No.0088403 for a sum of Rs.2 lacs in favour of complainant and on presentation, the said cheque was dishonoured on account of “insufficient funds”. After that, complainant served a registered legal notice on 29.03.2013 upon him, but he failed to make the payment of cheque in dispute and thereby the accused committed the offence punishable under Section 138 of the Act.”

7. While considering the arguments raised by the respondent's counsel that no specific date, month or year had been given by the applicant as to when the loan of Rs.2 lakh was advanced nor any record had been placed on record to show that the loan was advanced, nor the source regarding withdrawal of Rs.2 lakh on 5.7.2011, the learned trial Court dismissed the complaint on 23.01.2015.

8. Aggrieved of the judgment dated 23.01.2015 passed by the learned Additional Chief Judicial Magistrate, Sri Muktsar Sahib, the present application seeking leave to appeal has been filed.

9. I have heard learned counsel for the applicant and with his able assistance, have gone through the record.

10. Learned counsel for the applicant has argued that the applicant had advanced the loan of Rs.2 lakh to the respondent, which was a friendly loan and no document for extending the loan was executed keeping in view the relationship between the parties. The amount had been withdrawn from the State Bank of Patiala and there was specific entry to withdraw the said amount in the passbook Ex.C7.

11. Learned counsel has further argued that the applicant had retired from the Punjab State Electricity Board as an Engineer and had been drawing handsome pension, which is his source of income. If there is violation of Section 269-SS of Income Tax Act, it does not mean that the respondent could be discharged of the liability. When the payment was made through cheque, then it was not necessary to reflect the amount in income tax re