Madhya Pradesh High Court
Vinod Kumar Namdev vs Zubed Ahmed on 15 December, 2015
MCRC-16427-2014
(VINOD KUMAR NAMDEV Vs ZUBED AHMED)
15-12-2015
Shri Siddharth Gulatee, counsel for the applicant.
Shri Shreyas Dubey, counsel for the respondent.
Heard on leave application.
The applicant has preferred an application for grant of leave
to appeal against the judgment dated 7.7.2014 passed by
JMFC, Katni in RT No.81/2011, whereby the respondent has
been acquitted from the charge of offence under Section 138
of the Negotiable Instrument Act.
Facts of the case in short are that, according to the
complainant, he gave a sum of Rs.6 lacs on loan to the respondent. The complainant due to friendship with the respondent gave such an amount, which was collected by him in his life time and the respondent gave post dated cheque of Rs.6 lacs of 30.9.2011. When the cheque was submitted to the concerned bank on 13.10.2011, the same was returned with the intimation that there was no sufficient fund. A notice of demand was sent and thereafter, since no payment was made by the respondent, a criminal complaint was filed. The trial Court after considering the evidence adduced by the applicant, acquitted the respondent.
After considering the submissions made by learned counsel for the parties, it appears that in the complaint, the applicant could not state that what was the date of transaction. A post dated cheque may be given for the transaction so that it may be encashed after a shorter period like six months or a year. After considering the submissions made by the parties, it appears that in the year 2007, the account number of the respondent was changed, whereas cheque was issued from his previous Account No.831. Hence, it appears that the cheque was given prior to the year 2007 to the applicant, whereas on the cheque Ex.P/1 the date of issuance was to be given to be 30.9.2011. It is not expected from anyone that he would get a post dated cheque having the date after 4-5 years. If the applicant gave such an amount to the respondent on loan, which was his saving and hard earned money of his life time then, certainly he could not have taken an option to get money back after 4-5 years.
On the other hand, it was established by Shri Saurabh Mishra, Deputy Branch Manager of the concerned bank that a letter Ex.D/1 was sent by the respondent on 29.12.2005 that the concerned cheque had been lost therefore, its payment be stopped and when payment of that cheque was stopped in the year 2005, which indicates that cheque was allegedly given in the year 2005 and then, it is surprising that the applicant kept the cheque for approximately six years and thereafter, it was placed for its encashment. No reason was shown by the applicant as to why he kept silence for six years after getting cheque. The trial Court has rightly found that cheque was lost and the applicant after six years of alleged missing of the cheque filled up the date on the cheque and submitted for its encashment.
The applicant could not submit any documents to show that any transaction took place between him and the respondent in which he gave loan of Rs.6 lacs to the respondent. For such a huge amount of loan there must be documentary proof of five transaction. The trial Court has rightly acquitted the respondent from the charge of offence under Section 138 of the Negotiable Instrument Act. It is not proved beyond doubt that the cheque Ex.P/1 was issued in favour of the applicant for any payment.
On the basis of aforesaid discussion, there is no reason to grant leave to appeal in favour of the applicant. Consequently, the present leave application filed by the applicant Vinod Kumar Namdev is hereby dismissed. Copy of the order be sent to the Court below alongwith its record for information.
(N.K. GUPTA) JUDGE