9911796707
TMI Blog2017 (4) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... y, he opted not to appear and contest. 2. Briefly stated, facts of the case were that a complaint case under Section 138 Negotiable Instruments Act was filed by the appellant against the respondent. It was averred that in February, 2009 the respondent had approached him for a friendly loan of Rs. 5 lacs for short duration. Accordingly, the complainant gave him a sum of Rs. 5 lacs through various cheques with the assurance that it would be returned within time. In October, 2009, the respondent was requested to repay the loan amount. He sought 2 - 3 months time to make the payment. Rs. 50,000/- were paid thereafter on various occasions. It is further averred that the respondent had issued a cheque for a sum of Rs. 4.5 lacs on 07.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant reiterated his version averred in the complaint by way of affidavit (Ex.CW-1/A); documents (Ex.CW-1/1 to Ex.CW-1/6) were duly proved. In the cross-examination, the appellant informed that Rs. 5 lacs were given by him to the respondent on various occasions through various cheques. He had also given Rs. 3.6 lacs as a loan to the respondent through cash which was subsequently returned. He admitted receipt of Rs. 50,000/- out of Rs. 5 lacs on different occasions. Material facts stated by the appellant remained unchallenged in the cross examination. The respondent did not deny the issuance of cheque. He also did not put any specific question if after the issuance of the demand notice, he had made payment of the cheque amount to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent for recovery of Rs. 4.5 lacs along with interest and costs under Order XXXVII CPC, leave to defend was declined and the suit was decreed in the sum of Rs. 4.5 lacs with costs and pendent-lite interest @ 18% per annum from 07.09.2010 till its realization by a judgment dated 18.03.2015. The respondent did not come forward to inform if the said judgment has been assailed in appeal. Learned counsel for the appellant on specific query informed that execution petition has been filed and certain payments have been made by the respondent therein. 9. In the Civil Suit while moving the application for leave to contest, the respondent had admitted the case of the appellant to the extent that in the year 2009, he had received a total sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque (Ex.CW-1/1) to the appellant. The respondent did not explain as to under what situation and circumstances the cheque on presentation was dishonoured. 11. For the forgoing reasons, respondent's acquittal under Section 138 Negotiable Instruments Act is unsustainable and set aside. The appeal is allowed and the respondent is convicted under Section 138 Negotiable Instruments Act. 12. Section 138 provides that a person guilty for the offence be punished with imprisonment with term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. In the instant case as observed above, in civil proceedings, the respondent has made certain payments. 13. Having regard to the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
