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4. Briefly stated facts giving rise to the filing of this appeal are that respondent­complainant filed a complaint under section 138 of the Negotiable Instruments Act, 1881 inter alia on the allegations that complainant and appellant were having friendly relations for last more than four years. Appellant requested the complainant for extending friendly loan of Rs.2.33 lac as his business was in doldrums and in order to recover from said situation he was in dire need of money. Appellant assured him that he will repay the loan amount in time and further offered to give post dated cheques towards repayment of loan amount. On the assurance and promise made by the appellant, complainant gave friendly loan of Rs.2.33 lac. The appellant issued post dated cheque, that is, cheque No. 248752 ­3­ dated 18.09.2003 for Rs.2.33 lac, drawn on Kangra Co­operative Bank Ltd, 73A, A­Block, Jagatpuri, New Delhi, in favour of the complainant. The cheques were issued by the appellant to the respondent­complainant so as to discharge his liability towards the respondent­complainant. The cheque was deposited by the respondent­complainant for enchashment, but the same was returned unpaid by the bank with remarks "Funds Insufficient". Again cheque was deposited for encashment on 01.11.03 within the period of validity, but the same was returned unpaid by the bank of the appellant with remarks "payment stopped" by the drawer. The respondent­complainant gave legal notice dated 12.11.03 to the respondent­appellant demanding payment of returned cheque amount. The accused sent a reply dated 25.11.03 denying his liability to pay the amount. As such complaint was filed under section 138/142 of the Negotiable Instruments Act.

22. It is the case of the appellant that it was business transaction and the settlement was arrived at a total sum of Rs.1.50 lac, which was paid to the complainant and in lieu of that a receipt was issued. Therefore, no amount remained due to the complainant.

23. As regards plea that there was a business transaction between the appellant and the respondent, it is pertinent to note that complainant in his examination­in­chief led by way of affidavit had categorically stated that it was a friendly loan to the accused. He was subjected to lengthy cross­ examination by ld. counsel for the appellant. Even no suggestion was given to the complainant that there was any business transaction between ­11­ the two. Moreover, since this plea was taken by the appellant, it was for him to prove that there was business transaction between them. It is undisputed case of the parties that appellant had filed civil suit for mandatory and permanent injunction against the appellant alleging inter alia that they were good friends and having commercial dealings. A sum of Rs.1.50 lac was due towards plaintiff. The plaintiff had handed over four blank cheques bearing No. 248751, 248752, 248753 and 248754, blank papers and two blank stamp papers of Rs.4 and Rs.5 and it was settled that all the four cheques, blank papers and stamp papers shall be handed over by the defendant to the plaintiff after receiving full and final payment of Rs.1.50 lac. On 30.08.03, the plaintiff had paid a sum of Rs.1.50 lac to the defendant and receipt was also executed by the defendant, but despite assurance and demands defendant failed to return the blank cheques or papers. In that case accused (who was plaintiff in that case) was examined and on the Trial Court record copy of statement is available, in which he admitted that neither he purchased any goods from defendant nor defendant purchased anything from him. Under these circumstances, it was a mere a bald plea that it was a business transaction, which was not even proved by the appellant.

30. Much emphasis has been laid by the ld. counsel for appellant for submitting that bank details furnished by the complainant does not tally with the amount of cheque and therefore it is not proved that aforesaid amount was given as friendly loan to the appellant. In this regard it may be mentioned that it has come in the testimony of complainant that some of the amount was also paid by him in cash and therefore even if the amount does not tally fully, it does not mean that friendly loan was not given by him to the accused.

31. Moreover, a perusal of judgement passed by Sh. N.K. Malhotra, ld. Administrative Civil Judge, goes to show that in the civil suit filed by the appellant, complainant (who was defendant in that case) had taken the same plea that he had extended friendly loan of Rs.7,83,000/­ to the plaintiff and that a sum of Rs.5,50,000/­ was given from his sole proprietorship firm and another sum of Rs.2,33,000/­ was given from his personal account. One of the issue framed in that case was whether any friendly loan of Rs.7,83,000/­ was advanced by the defendant to the ­17­ plaintiff and this issue was decided in favour of defendant and against the plaintiff. As stated above, this finding has attained finality. Therefore this also goes against the appellant that no friendly loan was taken by him from the plaintiff.