JUDGMENT :

Manisha Batra, J. (Oral)

The present revision petition has been filed against the judgment dated 09.09.2011, passed by the learned Judicial Magistrate First Class, Gurugram in complaint bearing No. 110 of 2006, titled as Kunwar Pal vs. Satish and another, filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 (for short 'N. I. Act'), whereby respondent No. 1 and respondent No.2-firm were acquitted of the charges framed against them under the aforesaid sections; as well as for setting aside the judgment dated 08.10.2012, whereby the appeal filed by the petitioner/complainant had been dismissed by the lower appellate Court.

2. Adumbrated facts as emanating from the record and relevant for the purpose of disposal of this petition are that respondent No. 1/accused, who was proprietor of respondent No. 2-firm, availed loan to the tune of Rs. 5 Lakhs from the petitioner/complainant for a period of one month with a promise to repay the same along with interest. He had issued a cheque bearing number 140558 dated 23.09.2005 in favour of the petitioner to discharge his legally enforceable liability. This cheque was presented with the banker of the petitioner and was dishonoured with the remarks 'insufficient funds'. Legal notice was issued by the petitioner on 21.03.2006 calling upon the respondents to make the payment but to no avail, thereby compelling him to file the aforementioned complaint.

3. On considering the preliminary evidence, order for summoning of the respondents under Section 138 of the N. I. Act had been passed. Respondent No. 1 appeared before the learned trial Court. Notice of accusation was served upon him. The petitioner produced oral as well as documentary evidence. Respondent No. 1 was examined under Section 313 of Cr.P.C. He pleaded innocence. He examined one witness in defence.

4. On considering the contentions as raised by both the sides and after appreciating the evidence produced on record, learned trial Court acquitted the respondents of the charges as framed against them, vide judgment dated 09.09.2011. Appeal against the said judgment had also been dismissed by the learned first appellate Court, vide judgment dated 08.10.2012. Feeling dissatisfied, this petition has been filed by the petitioner/complainant.

5. Learned counsel for the petitioner has vehemently argued that the impugned judgments as passed by the Courts below are liable to be set aside as the findings given therein are not sustainable in the eyes of law. The Courts below did not apply their judicious mind. It is submitted that undisputedly, the petitioner had presented the cheque in question before his banker twice. The cheque was firstly presented on 07.01.2006 and had been dishonoured. It is also not disputed that a legal notice was also issued against the respondents as on 20.01.2006. It is further submitted that the Courts below wrongly observed that after presentation of the cheque and issuance of notice once, the petitioner was not entitled to present the cheque again and to issue a second legal notice to the respondents. It is argued that the cause of action to file and pursue the complaint survived even after issuance of first notice and receipt of the same by the respondents/accused and, therefore, the right of the petitioner, who was holder of the cheque in question, to prosecute respondent No. 1, who was drawer of the cheque and proprietor of respondent No. 2-firm, was not lost at all. It is argued that the petitioner was well within his rights to present the cheque in question any number of times within its validity and could prosecute the drawer even on second or successive default and this is what had been by him. It is, therefore, urged that the impugned judgments are liable to be set aside, the revision petition deserves to be accepted and the matter deserves to be remanded to the learned trial Court. In support of his arguments, learned counsel for the petitioner has relied upon the authorities cited as