Judgment

Mr. Jasjit Singh Bedi, J.

The applicant/appellant has filed the present application for grant of leave to appeal against the judgment of acquittal dated 20.12.2018 passed by Judicial Magistrate Ist Class, Faridabad whereby the accused-respondents have been acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881.

2. The brief facts of the case are that the instant complaint came to be filed by the complainant firm/applicant-appellant (hereinafter known as ‘the complainant’) through its proprietor Mr. Prabhu Dayal Thiran stating therein that the complainant was a firm dealing in various retail lubricants. The accused-respondents (hereinafter known as ‘the accused’) had purchased material from the complainant for which the complainant had a credit account of the accused firm in their account books. Towards payment to the complainant, the accused issued a cheque bearing no. 748541 dated 01.02.2017 for Rs.1,00,000/- drawn on “State Bank of India”, Faridabad”. When the complainant presented the said cheque for encashment through its banker, the same was returned as unpaid vide return memo dated 01.03.2017 with the remarks “Funds Insufficient”. The complainant sent a legal notice dated 09.03.2017 to the accused demanding the payment of the said cheque amount but the accused failed to make the payment, leading to the filing of the complaint.

2. In preliminary evidence, the proprietor of the complainant firm Sh. Prabhu Dayal stepped into the witness box as CW-1 and tendered his duly sworn affidavit Ex.CWI/A and placed on record the following documents:-

3. Upon notice, the accused appeared along with his counsel and secured his bail. Notice of accusation was served upon the accused for having committed an offence under Section 138 of Negotiable Instrument Act, to which he pleaded not guilty and claimed trial. Thereafter, the plea of the defence of the accused was recorded under Section 263(g) Cr.P.C.

4. An application under Section 145(2) of NI Act was filed on behalf of the accused seeking to recall the complainant for his cross-examination and the cross-examination of complainant was conducted.

5. In defence evidence, the accused no. 2 (respondent No.2) himself stepped into witness box as DW-1 and tendered his duly sworn affidavit Ex DWI/A and tendered the following documents:

6. Thereafter, the accused closed his defence evidence vide a separately recorded statement dated 05.12.2018.

7. After hearing the learned counsel for the complainant and the accused, the Trial Court came to the conclusion that the amount of Rs.1 lac had already been transferred to the complainant by way of NEFT, and therefore, the cheque in question had wrongly been deposited and got dishonoured by the complainant since there was no remaining legally enforceable debt. Thus, the accused came to be acquitted.

8. The learned counsel