Khazan Singh vs Sarmishtha Malik and Another

Inderjit Singh, J.—The present appeal has been filed by the appellant against the judgment dated 08.06.1999, passed by the learned Judicial Magistrate 1st Class, Chandigarh, whereby accused-respondent No. 1 was acquitted. The brief facts as given in the complaint are that complainant is a retired person and the accused was his neighbour. Accused has taken a loan of Rs. 80,000/- from him in cash by stating that she was in dire need of money and would return the same at the earliest. The accused issued a cheque bearing No. 712287 dated 01.06.1995 for a sum of Rs. 80,000/- in favour of the complainant to discharge her financial liability. The complainant presented the said cheque in Punjab National Bank (PNB), Sector-22, Chandigarh on 11.06.1995 but the same was returned back on 14.07.1995 along with the memo of UCO bank with remarks "insufficient funds". Thereafter, the complainant served the accused with a legal notice on 22.07.1995 through registered AD as well as under UPC, but the accused failed to make the payment of the cheque amount within the stipulated period.

On the basis of preliminary evidence, accused-respondent No. 1 was summoned. Notice of accusation u/s 138 of the Negotiable Instruments Act was served upon her on 25.05.1996, to which she did not plead guilty and claimed trial.

In support of its case, complainant examined CW-1 Ashok Kumar Chopra, PNB, Sector-22, Chandigarh, who brought the summoned record of account No. 46330 and deposed regarding depositing of the cheque Ex. C1. The cheque was sent for clearance, which was returned back on 14.07.1995 as unpaid with remarks "insufficient funds". The copy of the voucher (clearance) is Ex. C8. CW-2 Krishan Kumar, Clerk, UCO Bank also deposed regarding the cheque that it was returned due to insufficient funds. CW-3 Khazan Singh, complainant mainly deposed as per complainant''s version. He stated that accused took loan of Rs. 80,000/- on 01.06.1995 against surety of cheque Ex. C1, which was handed over to him. When he gave the cash, this money was taken as loan amount as the accused needed the same for some operation charges and also she had to clear her dues of Medical College, Patiala, when she was studying at that time.

At the close of complainant''s evidence, the accused-respondent was examined u/s 313 Cr.P.C. and she denied the correctness of the evidence and pleaded herself as innocent.

In defence, accused-respondent No. 1 examined DW-1 Dharam Pal Mehra, Senior Clerk cum Cashier Medical College, Patiala who mainly deposed that last and final fee was paid by accused Sarmishtha Malik on 07.09.1994 and at that time, all the dues were got cleared and accused paid all the dues to the college. Nothing was to be paid by the accused to the college towards the college and hostel fees. DW-2 Davinder Mohan Sharma deposed that he knew accused as being family friend. He came to know that there was some business involvement between the complainant and father of the accused. He was told by father of the accused that their business ran in loss of approximately Rs. 1-1.5 lacs. Then he received notice of this complaint. He used to see the complainant at the house of accused quite regularly. The complainant started demanding money from the father of the accused on account of loses sustained in the business. He further deposed that he collected the bill from the hospital authorities relating to operation performed on the accused dated 01.04.1995 and the entire payment was made towards the charges. Bill was signed by Dr. Dang in his presence and the same is Ex. DW 2/1. He also stated that he was informed that cheque in question has been found missing from the house.

On the basis of the evidence produced by the complainant, accused-respondent was acquitted by the learned Judicial Magistrate 1st Class, Chandigarh as stated above.

None has appeared on behalf of the appellant. Learned counsel for the appellant on the last date of hearing has informed the Court that appellant has died and she will file application for bringing the names of LRs but neither the names were given nor any legal representative applied to the Court for permission to implead them. As the appeal has already been admitted, therefore, this appeal is to be decided on merits.

I have gone through the evidence on record and have heard learned counsel for accused-respondent No. 1.

From the evidence on record, I find that the complainant himself has stated while appearing as CW-3 in the Court that he advanced the loan of Rs. 80,000/- on 01.06.1995 and the cheque in question was given at that very time by the accused-respondent No. 1 as surety. Therefore, it is clear that this cheque has not been given to discharge the liability. Rather, it is given as a guarantee/surety. Therefore, the accused is not liable u/s 138 of the Negotiable Instruments Act.

Further, I find that as per complainant, the loan was taken by the accused to pay the college and hostel fees and the operation charges. DW-1 Dharam Pal Mehra, Senior Clerk-cum-Cashier Medical College, Patiala has deposed that accused has already paid all the college and hostel fees on 07.09.1994, which means that accused did not require this amount for payment of fees. Again, as per DW-2 Davinder Mohan Sharma, the expenses of operation have already been paid to the hospital vide Bill Ex. DW 2/1 dated 01.04.1995. Therefore, from the evidence on record, it is clear that accused did not require the amount for clearing the operation charges as the charges were already paid by her much prior to alleged borrowing of loan. Learned Magistrate has discussed this aspect on the basis of evidence and after giving reasoning, has held that cheque in question was not in discharge of any debt. Hence, accused is entitled to acquittal. The reasoning given by the learned Judicial Magistrate 1st Class, Chandigarh is correct and as per law. There is nothing on the record to show that findings are perverse or against the evidence or against the law. There is also nothing on the record to show that any material evidence has not been discussed or the evidence has been wrongly appreciated.

Therefore, from the evidence on record and in view of the above discussion, I find that findings given by learned Judicial Magistrate are correct. There is nothing on the record, to interfere with the impugned judgment passed by learned Judicial Magistrate 1st Class, Chandigarh. Resultantly, there being no merit in the appeal, the same is dismissed.