JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

1. The present appeal has been filed against the impugned order dated 06.06.2019 passed by the learned Metropolitan Magistrate-09, South-East District, Saket Courts, New Delhi, whereby the complaint of the appellant was dismissed and the respondent no.2/accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’)

2. The complaint was filed by the complainant under Section 138 of the NI Act alleging that the accused had entered into three agreements dated 19.01.2015, 21.02.2015 and 23.03.2015 with the complainant for a sum of Rs.1,00,000/- each. Under the agreement dated 19.01.2015, a sum of Rs.1,00,000/- was advanced by the petitioner/complainant to the respondent/accused @ 5% p.m. and after deducting the first instalment of interest, an amount of Rs.95,000/- was paid to the accused/respondent. The second agreement dated 21.02.2015 contains only one line wherein it has been mentioned that a further amount of Rs.1,00,000/- has been received by the respondent/accused. The third agreement dated 23.03.2015 contains a narration to the effect that further amount of Rs.1,00,000/- has been received bythe complainant/accused at interest of @ 3% p.m..

3. It is the case of the petitioner/complainant that two security cheques of Rs.1,00,000/- each were issued by the respondent/accused to the petitioner/complainant. As the respondent/accused failed to repay the loan amount, the petitioner/complainant was constrained to present the said two cheques, both bearing the date 15.02.2018. However, the cheques were returned unpaid with the remarks “account closed”.

4. Notice under Section 138 of the NI Act was given by the petitioner/complainant and thereafter, a complaint was instituted under Section 138 read with Section 142 of the NI Act.

5. Notice under Section 251 CrPC was framed against the respondent/accused to which the respondent/accused pleaded not guilty and claimed trial. In the said notice, specific defence was also taken by the respondent/accused that he had given three cheques to the petitioner/complainant with an understanding that the complainant will pay the loan of Rs.3,00,000/- but thereafter, the petitioner/complainant failed to give an amount of Rs.3,00,000/- to the accused.

6. The petitioner/complainant examined himself as CW-1 and he was cross-examined by the respondent/accused. Thereafter, the statement of the accused under Section 313 CrPC read with Section 281 CrPC was recorded wherein it was stated by the respondent/accused that both the cheques were given in advance for securitypurpose.

7. The learned Metropolitan Magistrate after examining the evidence on record recorded a finding that the petitioner/complainant had failed to prove that the respondent/accused had executed any loan agreement/receipt (Ex.CW-1/1).

8. Learned counsel for the petitioner invites the attention of the Court to three agreements, to contend that the said three agreements bear the signatures of the respondent/accused, therefore, the payment of Rs.3,00,000/- bythe petitioner/complainant stood proved.

9. He further submits that the respondent/accused had admitted his signatures on the cheques as well, therefore, in view of the presumption under Section 139 of the NI Act, the learned Metropolitan Magistrate ought to have allowed the complaint of the petitioner/complainant. He submits that the learned Metropolitan Magistrate has wrongly concluded that the petitioner/complainant has not proved that the cheques were issued in discharge of legallyenforceable debt.

10. Per contra, learned counsel for the respondent no.2 has invited the attention of the Court to the cross-examination of the petitioner/complainant (CW-1), to contend that in the cross-examination for the first time the petitioner/complainant had taken a stand that an amount of Rs.1,00,000/-

was given cash on three occasions.

11. She submits that there is nothing on record to suggest that the petitioner was possessing that m