The trial Court's failure to consider critical evidence led to the acquittal being set aside and the case remanded for fresh consideration.

Judgment

Mr. Harpreet Singh Brar, J.

By this common order, three appeals, details of which have been given in the head note, are being disposed of, as the issue involved therein is similar. However, the facts are being culled out from CRA-AS No.5977 of 2018 for the sake of brevity.

2. The appeal in CRA-AS No.5977 of 2018 has been preferred by the appellant against the judgment dated 13.11.2017 passed by the Judicial Magistrate 1st Class, Gurugram whereby respondent No.2 has been acquitted under Section 138 of the Negotiable Instrument Act, 1881.

3. In brief, the facts are that the appellant-complainant along with respondent No.2 and one Shri Krishan Prakash Maheshwari entered into a partnership business of trading stainless steel pipes under the name and style of M/s Tirupathi Stainless Steel Traders at B-129, Basement, Ardee City, Sector 52, Gurugram. The said partnership firm was dissolved on 24.06.2015 and respondent No.2 promised that he would pay Rs.23,95,076/- to the appellant towards profit, which was reduced into writing by respondent No.2 and other outgoing partners. Thereafter, respondent No.2 on behalf of respondent No.1 issued three post dated cheques dated 20.10.2015, 20.11.2015 and 20.12.2015 for an amount of Rs.10 lakhs each, drawn on Bank of Maharashtra, SCO No.86, District Shopping Centre, Sector 56, Gurugram to the appellant, which included his profit and assured him that said cheques would be encashed on presentation. The appellant deposited cheques dated 20.10.2015 and 20.11.2015 amounting Rs.10 lakhs each for encashment, which were dishonoured. The appellant issued demand notices to respondent No.2-accused for payment of the cheque amount and when he failed to do so, two complaints were filed against him. The appellant also presented the third cheque dated 20.12.2015 amounting Rs.10 lakhs for encashment in his bank account on 24.12.2015 but the said cheque was also dishonoured on 28.12.2015 with an endorsement of ‘payment stopped by drawer’. A demand notice of 15 days was served upon respondent No.2 on 04.01.2016 through registered post to make the payment of the cheque amount and when he failed to do so, present complaint was filed.

4. On finding a prima facie case against the respondents under Section 138 of the NI Act, notice of accusation was served upon respondent No.2-accused vide order dated 11.05.2016, to which he pleaded not guilty and claimed trial. In order to prove his case, the appellant examined himself as CW1 and tendered affidavit Ex.CW1/4 along with documents Ex.C1 to C9 and examined Sonu Kumar as CW2 and thereafter closed the evidence.

5. Statement of respondent No.2-accused under Section 313 Cr.P.C. was recorded and the incriminating evidence was put to him to which he pleaded false implication and claimed innocence. He examined himself as DW1 and tendered his affidavit Ex.DW1/A along with documents Ex.D1 to D6.

6. After appreciating the evidence led by both the parties, the learned trial Court acquitted respondent No.2 from the notice of accusation framed against him. Hence, the present appeals.

7. Learned counsel appearing for the appellant submitted that the learned trial Court has not considered the factual aspect and the admission of respondent No.2 while deposing before the learned trial Court and wrongly placed reliance upon the purchase order dated 14.07.2015 and cancellation of purchase order dated 03.09.2015 (Annexure P-3 colly). As per the cross-examination of respondent No.2, it is admitted that the firm mentioned in the purchase order is owned by the cousin sister of respondent No.2. Moreover, the particulars of the rate at which the goods were to be delivered are not mentioned in the purchase order and first and last consignment was scheduled to be delivered on 16.08.2015 and 16.12.2015 respectively. However, the purchase order was cancelled on 03.09.2015 on the ground of late delivery of goods whereas a perusal of Ex.C1 (Annexure A-1) indicates that respondent No.2 had decided to