Punjab-Haryana High Court
Devinder Singh vs Raj Kumar Mittal on 26 August, 2014
CRM - A - 707 - MA of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA,
AT CHANDIGARH
-.-
CRM - A - 707 - MA of 2013 (O&M)
Decided on : August 26, 2014
Devinder Singh ... Appellant
Versus
Raj Kumar Mittal ... Respondent
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr. Gaurav Sethi, Advocate, for the appellant.
Mahavir S. Chauhan, J. (Oral)
Crl. Misc. No. 39500 of 2013 For the reasons stated in the application, delay of 89 days in filing the appeal is condoned and the application is disposed of. CRM-A-707-MA of 2013 Devinder Singh, appellant here-in, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') arraying the respondent as accused, which was tried by the learned Judicial Magistrate, Ist Class, Patiala (for short - 'trial Court').
Case of the appellant as noted by the learned trial Court reads as under:-
"that the accused had friendly relations with the complainant and asked the complainant to lend a friendly loan of Rs.1,70,000/- to the accused as the accused was in need of the TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 707 - MA of 2013 -2- same for domestic purposes. The accused undertook to repay the said amount after some time. The complainant advanced the loan of Rs.1,70,000/- and thereafter the accused did not return back the said amount as agreed by the accused. The complainant visited accused several times and requested the accused to return back the said loan amount, but the accused delayed the matter on one pretext or the other and ultimately the accused issued a cheque bearing No.030881 dated 17.08.2009 from his account No. 304010100014678 of UTI Bank Ltd., situated at 1-2, Caliber Market, Rajpura, District Patiala, in favour of the complainant. The complainant presented the cheque with his i.e Canra Bank with account No.1119 on 17.08.2009. The said cheque was returned back by the bankers of the accused vide memo dated 19.08.2009 with the remarks "Account Frozen". The complainant asked the accused verbally to pay the amount of cheque but the accused flatly refused to do so. The complainant got served as Regd. Legal notice dated 16.09.2009 upon the accused. The notice was also sent through Regd/UPC to the accused requesting him to pay back the amount within the stipulated period. But the accused intentionally did not receive the said legal notice, which was received back by the counsel for complainant as unclaimed. The accused failed to make the payment inspite of the legal notice given to him, which was not received by him, TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 707 - MA of 2013 -3- hence this complaint."
After preliminary evidence, respondent was summoned through notice of accusation, to which he pleaded not guilty and claimed trial. Complainant examined material witnesses and respondent was examined under Section 313 of the Code of Criminal Procedure, 1973. No evidence in defence was led by the respondent.
After hearing both the sides, learned trial Court dismissed the complaint of the appellant by observing as under:-
"The complainant has himself stepped into the witness box as CW1. He has reiterated, on oath, the facts stated by him in his complaint and has proved the documents i.e cheque as Ex.C1, memos as Ex.C2, copy of legal notice as Ex.C3, postal receipt as Ex.C4, unclaimed register envelop as Ex.C5. However, the complainant has not mentioned either in his complaint or in his affidavit as to when was the loan advanced and when it was to be returned by the accused. Even if the story put forward by the complainant regarding advancement of loan by the complainant to the accused is believed yet from the evidence and the papers put forward on the file by the complainant, it is not clear as to when was the loan of Rs.1,70,000/- advanced by the complainant to the accused. When the said loan was to be returned and at the time of issuance of the cheque in question whether the alleged debt/loan was legally recoverable debt/loan or not. So in the TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 707 - MA of 2013 -4- absence of any proof regarding the time of advancement of loan, the Court can't safely come to the conclusion that the loan taken by the accused from the complainant remained a legally recoverable debt at the time of issuance of alleged cheque by the accused. Hence, if the said bounced, the accused can not be held guilty for the commission of offence under Section 138 of Negotiable Instruments Act. As such, the accused is entitled to acquittal. I acquit him accordingly. Bail bonds and surety bonds are discharged. File be consigned to the record room."
To challenge, the aforesaid judgment dated 12.03.2013, the appellant has filed the instant appeal along with application for grant of leave to appeal.
I have heard learned counsel for the appellant on merits. The sole ground on which the complaint has been dismissed by the learned trial Court is that the appellant has not been able to show as to when the amount of Rs.1,7o,000/- was lent by him to the respondent or that it was a legal recoverable debt. Learned counsel for the appellant has not been able to rebut the observations of the trial Court. Not only this, to a pointed question put to the learned counsel, he has replied that the appellant is a business man and maintains regular book of accounts and is assessed to income tax. However, he has not been able to show to the Court the book of accounts and/or income tax returns reflecting the amount of loan, in question, if was actually advanced by the appellant to the respondent. TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 707 - MA of 2013 -5-
In view of all these circumstances, application for grant of leave to appeal fails and is dismissed, accordingly.
[ Mahavir S. Chauhan ]
August 26, 2014 Judge
tripti
TRIPTI SAINI
2014.08.29 10:10
I attest to the accuracy and
integrity of this document