The appellate court can reverse a judgment of acquittal only if the trial court's findings are perverse or erroneous, particularly concerning the statutory compliance under the NI Act.

Lachhmi Singh ...Appellant Versus Rajesh Radhaik ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes.

For the Appellant : Mr. B.S. Chauhan, Senior Advocate, with Ms. Aditi Rana, Advocate.

Forg the Respondent : Ms. Aruna Chauhan, Advocate.

Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 29.08.2012, passed by learned Judicial Magistrate First Class, Theog, District Shimla, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act,

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

1881 (NI Act) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act ( in short NI Act). It was asserted that the complainant is running a Grocery/Karyana shop in the name and style of M/s. Beli Ram Lachhmi Singh Deha, Tehsil Theog. The accus ed purchased various articles from the complainant and issued a cheque of ₹2,00,000/- bearing No. 4579879, dated 30.09.2009, to discharge his liability. The complainant presented the cheque to H.P. State Co-operative Bank Ltd. Chopal, District Shimla, but it was dishonoured with the remarks “insufÏcient funds”. The complainant issued a legal notice to the accused on 21.11.2009 asking him to repay the amount within 15 days of the receipt of the notice. The notice was served upon the accused, but the accused failed to repay the amount despite the receipt of the notice. Hence, the complaint was filed before the learned Trial Court to take action as per law.

3. The learned Trial Court recorded the preliminary evidence and found sufÏcient reasons to summon the accused. When the accused appeared before the Court, notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined Surinder Singh (CW1), Akashdeep Jhagta (CW2) and himself (CW3).

5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the complainant was running a Grocery shop and he had cordial relations with the complainant. He denied that he had purchased any ration from the complainant or issued any cheque in favour of the complainant. He stated that he had sent a reply to the notice. He claimed that a false case was made against him. He examined Laiq Ram (DW1).

6. Learned Trial Court held that the notice was not issued within 30 days of the receipt of memo of dishonour and, an essential ingredient of Section 138 of NI Act was not satisfied. Otherwise, cheque carried with it a presumption of consideration which was not rebutted. The cheque was dishonoured with endorsement “insufÏcient funds”. The accused admitted the receipt of the notice; however, the notice was not served within the statutory period; hence, the accused was acquitted.

7. Being aggrieved from the judgment passed by the learned Trial Court, the complainant filed the present appeal, asserting that the learned Trial Court erred in appreciating the evidence. It was wrongly held that the complaint was filed on the 31^st day of the date of receipt of the memo of dishonour. The complaint was filed on the 30th day, and the findings are incorrect; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8. I have heard Mr. B.S. Chau