Appeal against acquittal under Section 138 NI Act not interferable unless perverse; prior cheque loss notification rebuts presumption; complaint premature before 15 days from 30-day deemed notice service.

Judgment :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 2.11.2011, passed by learned Judicial Magistrate First Class, Court No. 3, Shimla, District Shimla, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). (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 NI Act. It was asserted that the complainant was running a hotel in the name and style of M/s Doegar Hotel near Jodha Niwas, Shimla. The accused deals in the sale and purchase of property at Solan. The complainant agreed to purchase the property from the accused, who assured the complainant that the sale deed would be registered in his favour on or before 12.6.2007. The complainant contacted the accused on the due date, but the accused expressed his inability to sell the land and returned Rs. 4.00 lacs to the complainant by a cheque. The complainant presented the cheque to his bank, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant sent a notice to the accused asking him to repay the amount within 15 days from the date of the service of the notice. The notice was duly served upon the accused, but he failed to repay the amount. Hence, the complaint was filed before the learned Trial Court for taking action against the accused as per the law.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a 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 himself (CW1) and Baldev Krishan (CW2) to prove his case.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He stated that a false case was filed against him, and the witnesses deposed falsely against him. He had lost the cheque book and informed the bank about the loss. He examined Rameshwar Dutt Sharma (DW1), Baldev Krishan (DW2) and Raj Kumar (DW3) to prove his defence.

6. Learned Trial Court held that the plea taken by the accused that he had lost the cheque was duly corroborated by the instructions to stop the payment issued in the year 2003. The complainant could not describe the dimensions of the plot that was to be purchased by him. He had not verified the papers. He did not enter into any agreement to purchase and did not obtain any receipt of payment. The witnesses in whose presence the money was paid did not support the complainant’s version. The defence witnesses made the complainant’s version doubtful. Therefore, the learned Trial Court acquitted the accused.

7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal, asserting that the learned Trial Court failed to properly appreciate the material on record. The accused failed to prove that the cheque book from which the cheque in question was issued wa