The requirement of a legally enforceable debt or liability under section 138 of the Negotiable Instruments Act.

JUDGMENT

H.S. Madaan, J. - In the last order, the fixed date was inadvertently mentioned as 21.1.2018 which happen to be Sunday, as such it had been taken up today.

2. Complainant Jai Bhagwan had filed the complaint under section 138 of the Negotiable Instruments Act against Avtar Singh Saini on the allegation that there has been a friendly relation between the parties as such accused had borrowed an amount of Rs. 8,50,000/-from the complainant in January 2010 and issued a cheque bearing No. 500421 dated 20.4.2010 in a sum of Rs. 5 lac and cheque bearing No. 500422 dated 4.5.2010 for Rs. 3,50,000/- drawn on ICICI Bank Limited in favour of complainant so as to discharge the said financial liability. However on presentation, the cheques were dishonoured due to insufficiency of funds in the account of the accused. The complainant was informed accordingly vide memo dated 30.6.2010. He issued a legal notice dated 14.7.2010 calling upon the accused to pay the cheque amounts within a period of 15 days on receipt of notice, but to no effect, as such complaint was filed in the Court of competent jurisdiction i.e. of Judicial Magistrate Ist Class, Rohtak.

3. After recording of preliminary evidence accused was ordered to be summoned. He accordingly put in appearance and was admitted to bail. Notice of accusation for offence under section 138 of the Negotiable Instruments Act was accordingly served upon him to which he pleaded not guilty and claimed trial. Thereafter complainant led evidence inasmuch as he himself appeared as CW1 and tendered his evidence by way of affidavit Ex.CW-1/A. He perused on record the following documents :-

4. The accused further examined Sh. Pritam Saini as CW-2, who submitted his affidavit Ex.CW-2/A stating that complainant Jai Bhagwan is his father-in-law and in January 2010 he had handed over an amount of Rs. 2,50,000/- to his father-in-law as the accused wanted to borrow an amount of Rs..8,50,000/-from his father-in-law who had tendered an amount of Rs.Rs.8,50,000/- to the accused on 10.1.2010 at Rohtak on the assurance of the accused that he would repay it within 3-4 months and that his father-in-law told him that accused issued two cheques in his favour so as to clear his liability. The 3rd witness examined by complainant happen to be his daughter Smt. Babita wife of Jagdish as CW-3, who tendered her affidavit Ex.CW-3/A stating therein that in the first week of January,2010 she gave an amount of Rs. 2 lacs to her father since accused wanted to borrow amount of Rs. 8,50,000/- from her father who had given an amount of Rs. 8,50,000/- to accused on 10.1.2010 at Rohtak and that her father had told her that accused issued two cheques in his favour so as to clear the liability. Complainant further tendered sale deed Ex.CW-3/B. With that evidence of complainant got concluded.

5. Statement of accused was recorded under Section 313 Cr.P.C., 1973 in which all the incriminating circumstances appearing against the accused put to him but he pleaded innocence.

6. The accused laid evidence in defence also by examining,DW1 Desraj and DW2 Jasvinder Singh.

7. After hearing the arguments, the trial Magistrate dismissed the complaint. The relevant part of observation are as under :-

"From the testimony of the complainant as well as CW-2 and CW-2 it has come to the notice of the Court that accused is known to the complainant since 2008 as the accused used to visit the complainant shop as a customer which has been categorically admitted by the complainant in his testimony. From the present set of facts, applying the test of prudent citizen, the Court fails to find any gravity in the complainant's story that he has tendered a huge sum of Rs. 8