Baldev Singh Patyal vs Jai Bharat Furniture

Anoop Chitkara, J

This appeal coming on for hearing before this day, the Court passed the following:

Private Complaint No.

No. 137-I of 2006, decided on 6.2.2008, by learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P.

A holder of cheque, who on failure to encash the same, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (after now referred to as 'the Act') and aggrieved by the acquittal and discharge of the accused, came up before this Court by filing the instant appeal.

Vide memo Ex.C-5, the banker informed the complainant that they could not honour cheque No.874178, dated 12.9.2006, amounting to Rs.1,50,000/- because of the insufficient funds in the account of the drawer. Such endorsement Ex. C-6 was conveyed by the banker, State Bank of India to the complainant vide memo Ex.C-5. After that the complainant sent a legal notice Ex.C- 1 to the drawer of the Cheque M/s Jai Bharat Furniture House, respondent herein, requesting them to clear the payment of Rs.1,50,000/- within fifteen days. The said legal notice was sent through speed post, receipt of which is tendered in evidence as Ex.C-2 and the acknowledgement as Ex.C-3.

On non- receipt of the payment within the stipulated time, the appellant filed a criminal complaint before the concerned Court under Section 138 of the Act, against the respondent-accused.

Vide order dated 10.10.2006, on finding a prima facie case, learned Judicial Magistrate, took cognizance of the offence and summoned the accused.

Vide order dated 27.2.2007, learned trial Court put notice of accusation to the accused for dishonour of cheque. The accused did not plead guilty and claimed trial. The complainant was subjected to cross-examination on behalf of the accused.

In the statement under Section 313 Cr.P.C., the accused admitted that he has borrowed a sum of Rs.1,50,000/- for business purposes from the complainant and stated that the cheque was issued as security and he promised to repay the amount in cash.

Vide above captioned judgment, learned trial Court did not find the evidence sufficient to convict the accused and thus discharged him.

Challenging the said discharge, the complainant came up before this Court by filing the above-mentioned appeal.

I have heard learned counsel for the parties and gone through the records.

ANALYSIS AND REASONING.

The cheque was amounting to Rs.1,50,000/-. In the paragraph 1 of the legal notice the complainant explicitly stated that the accused had obtained Rs.1,50,000/- for business purposes, which was given by the complainant in the month of December, 2005. The contents of the complaint and the affidavit filed in evidence are to the same effect. However, complainant Baldev Singh, PW-3, in his cross-examination, admitted that he had already received two demand drafts of Rs.75,000/ - each. He also admitted that those demand drafts were given in lieu of the present cheque. He also admitted it to be correct that the accused had given response to the notice by saying that not to launch prosecution for cheque because he was going to pay the money. He stated that it was running out of limitation. Given this categorical evidence of the cross-examination, there is no legally enforceable debt, which accused was bound to pay. Once the liability has been discharged by payment through demand draft, the dishonour of cheque for the same transaction would not entitle him to recover the same amount twice.

Given the peculiar facts and circumstances of this case, the complainant has failed to prove that the cheque was issued to discharge the legally enforceable liability of debt. Consequently, the complainant failed to prove his case.

The judgment of the trial Court is also to the similar effect. Thus, this Court finds no illegality in the same and the same is accordingly upheld.

Thus, the appeal fails and the same is accordingly dismissed. Bail bonds furnished by the accused are cancelled and discharged. All pending applications, also stand disposed of.