JUDGMENT

1. The present Appeal bearing no.786/2023 is filed under section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) read with section 482 of the Code to challenge judgment 02.04.2019 passed by Ms. Prabh Deep Kaur, Metropolitan Magistrate- 02, South, Saket Courts, Delhi (hereinafter referred to as the “trial court”) bearing CC no. 471383/2016 titled as Jal Singh Malik V Om Prakash.

2. The appellant/complainant Jai Singh Malik (hereinafter referred to as “the appellant”) through attorney Mala Devi Malik filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as “the Act”) against the namely Om Prakash/accused (hereinafter referred to as the “respondent”) on allegations that the respondent issued a cheque bearing no. 098957 dated 10.01.2016 amounting to Rs. 6,00,000/- drawn on State Bank of India, Ambedkar Nagar, Delhi–110017 (hereinafter referred to as “the cheque in question”) in favour of the appellant towards discharge of liability and the said cheque got dishonoured when presented for encashment on the ground of “funds insufficient” vide return memo dated 15.03.2016. The appellant pleaded that the appellant, a member of paramilitary force, was advised by the respondent who is also relative of the appellant to purchase a flat in Delhi. The appellant has agreed to purchase a flat in locality of Krishna Park/Jawahar Park. The appellant had deposited Rs.4,47,095/- in two accounts bearing no 160010100050643 and 10207358344 maintained at Axis Bank and State Bank Of India during period from 07.02.2008 to 2012 and gave Rs. 1,52,905 in cash in the year 2013 to 2014 total Rs.6,00,000/- to the respondent on assurance of the respondent regarding purchase flat for the appellant.

2.1 The respondent avoided to purchase a flat for the appellant orto return the amount already paid to the respondent. The respondent due to intervention of the relatives had agreed to pay back Rs.6,00,000/- to the appellant in the month of December 2015 and accordingly issued a post-dated cheque i.e. cheque in question in favour of the appellant to liquidate the admitted legal liability with assurance that cheque in question would be encashed. The appellant presented cheque in question for encashment to its banker i.e. State Bank Of India, Branch Sangam Vihar on 11.03.2016 but the said cheque was not honoured and returned back unpaid vide cheque return memo dated 15.03.2016 with remarks "funds insufficient”. The respondent did not paid the cheque amount despite notice dated 16.03.2016 within stipulated period. Hence the complainant filed present complaint.

2.2 The court of Ms. Preeti Parewa, Metropolitan Magistrate-02, NI Act. Saket vide order dated 23.04.2016 observed that there are sufficient ground for proceedings against the respondent and accordingly issued the summons to the respondent. The respondent vide order dated 06.08.2016 was given notice under section 251 of the Code for offences punishable under section 138 of the Act to which the respondent pleaded not guilty and claimed trial. The respondent filed an application under section 145(2) of the Act which was allowed vide order 06.08.2016 passed by the court of Ms. Preeti Parewa, Metropolitan Magistrate-02, NI Act, Saket by observing that the respondent is having valid defence. The attorney of the appellant and the appellant were examined and cross examined as CW1 and CW2 respectively. The evidence of the appellant was ordered to be closed vide order dated 08.03.2018.

2.3 The statement of the respondent was recorded under section 313 read with section 281 of the Code wherein the respondent stated that he had given Rs. 50,000/- to the appellant in the year 2007. The appellant returned back Rs. 49,000/- back to the respondent on 07.02.2008 with assurance to pay balance amount of Rs.1,000/- later on. The appellant approached the respondent in December, 2008 for taking Rs.3,50,000/- for purchasing a property and the responde