P.C. Sethi (Parkash Chand Sethi) vs Parshotam Lal

Mansoor Ahmad Mir, A.C.J.

This Criminal Appeal is directed against the judgment and order dated 15th January, 2007, passed by the Chief Judicial Magistrate, Solan, in Complaint No. 94/3 of 2000, titled as Shri P.C. Sethi (Parkash Chand Sethi) v. Parshotam Lal, u/s 138 of Negotiable Instruments Act, 1881, (for short "the Act"), whereby the complaint was dismissed, for short "the impugned judgment", on the grounds taken in the memo of appeal.

Brief facts:

A complaint u/s 138 of the Act was presented before the Chief Judicial Magistrate, Solan, on 18th May, 2000, for drawing cognizance and issuing process against respondent-accused Shri Parshotam Lal, for commission of an offence punishable u/s 138 of the Act and his conviction and sentence, by the appellant-complainant, on the ground that he had advanced a loan to the tune of Rs. 45,000/-, to the respondent-accused, who had promised to return the same by 15th March, 2000 and in discharge of his liability, the respondent-accused had issued a cheque dated 15th March, 2000, drawn at Union Bank of India, Solan. The aforesaid cheque was presented before the said bank, which was dishonoured, bounced and returned with the remark "insufficient funds."

It is averred in the complaint that legal notice was issued through registered post which was served upon the respondent-accused, but he had failed to satisfy the loan amount, constraining the appellant-complainant to file the complaint.

Cognizance was drawn and process was issued. The respondent-accused had appeared before the trial Court and notice of accusation was put to him u/s 138 of the Act, to which he had pleaded not guilty and claimed to be tried.

The complainant had examined Shri Rakesh Kumar as CW-2. He had also appeared in the witness box and tendered his own statement. The statement of the respondent-accused was recorded in terms of Section 313 of the Code of Criminal Procedure, wherein he had denied all the questions put to him.

The respondent-accused had examined Goverdhan Singh as a defence witness and also appeared himself in the witness box as DW-2.

The trial Court after scanning the evidence on record, had dismissed the complaint on the ground that the cheque book was issued by the concerned bank in the year 1996-97 in the name of firm "M/s Yours'' Furniture Industry" and not in the name of the respondent-accused. All the cheques were issued by the respondent-accused. The cheque in question remained with the complainant, employed by the accused as an Accountant, who in all probabilities, had misused the same.

What is evidence on the file to that effect, is not forthcoming from the discussion made by the trial Magistrate.

It was the duty of the trial Magistrate to return findings whether the complainant had proved all the ingredients required for the commission of an offence punishable u/s 138 of the Act or whether presumption was in favour of the complainant or whether the accused had dislodged the same in terms of mandate of the Act. The trial Court has also not even discussed whether the complainant has proved that he had advanced the loan to the accused.

In the given circumstances, I am of the considered view that the impugned judgment is cryptic, non-speaking one and has not been passed while keeping in view the provisions contained in Chapter XVII of the Act, which consists of Sections 138 to 147.

Having said so, the impugned judgment is set aside and the case is remanded to the trial Court with a direction to hear the parties afresh and pass appropriate orders, as early as possible, preferably within three months from today.

The parties through their Counsel are directed to cause their appearance before the trial Court on 1st May, 2014.

The appeal is accordingly disposed of. Send down the records after placing a copy of the judgment on record.