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2017 (4) TMI 976 - DELHI HIGH COURT

2017 (4) TMI 976 - DELHI HIGH COURT - TMI - Charge under Section 138 Negotiable Instruments Act - Held that:- Both the complainant and the accused were known to each other being colleagues. It, however, fell into grave error to observe that the respondent was able to rebut the presumption and the burden was heavily upon the appellant to prove its case beyond reasonable doubt. There was no dispute raised by the appellant regarding the payments of ₹ 3.6 lacs and other payments amounting to & .....

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noured. - For the forgoing reasons, respondentís 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. - 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 proc .....

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nt Through: None. S.P.GARG, J. (Oral) 1. The instant appeal has been preferred by the appellant - Arvind Kumar Minhas to impugn a judgment dated 29.06.2013 of learned Metropolitan Magistrate in Complaint Case No.456/2010 by which the respondent - Neeraj Kumar was acquitted of the charge under Section 138 Negotiable Instruments Act. The Respondent put appearance on some dates pursuant to the notice issued. Subsequently, he opted not to appear and contest. 2. Briefly stated, facts of the case were .....

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e the payment. ₹ 50,000/- were paid thereafter on various occasions. It is further averred that the respondent had issued a cheque for a sum of ₹ 4.5 lacs on 07.09.2010. However, on presentation the cheque was returned dishonoured by the bankers with the remarks Funds insufficient . Legal notice was served upon the respondent on 16.11.2010; there was no response to it. 3. In his pre-summoning evidence, the appellant filed evidence by way of affidavit. By an order dated 13.01.2011 cog .....

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has been preferred by the appellant. 4. In response to the notice given under Section 251 Cr.P.C., the respondent had admitted issuance of cheque in the sum of ₹ 4.5 lacs drawn on State Bank of India, Tis Hazari Courts, Delhi, in favour of the appellant. He further admitted that the said cheque on presentation was dishonoured. He admitted the receipt of legal demand notice. He claimed that as per his detail or estimate, he was to pay ₹ 60,000/- ₹ 70,000/- to the complainant an .....

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ven ₹ 3.6 lacs as a loan to the respondent through cash which was subsequently returned. He admitted receipt of ₹ 50,000/- out of ₹ 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 the appellant, and if so, on what date(s) and by w .....

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f ₹ 5 lacs from the appellant. He, however, claimed that out of the said amount, he had returned ₹ 3.6 lacs through RTGS from his father s account. ₹ 15,000/-, ₹ 25,000/- and ₹ 50,000/- were paid by him through cheques. In the cross-examination, he admitted that on 15.11.2009 he had given in writing (Ex.DW-1/P1) to the complainant I have taken loan of ₹ 4.5 lacs from the complainant and the same will be returned by 20.11.2009 positively . He also admitted the .....

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377; 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 ₹ 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 bee .....

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nt on various occasions and for that reason cheque in the sum of ₹ 4.5 lacs was issued for the balance amount. The Civil Court further noted that document (Ex.DW-1/P1) dated 15.11.2009 was admitted by the respondent to have been executed. Since this document was executed on 15.11.2009 there was no question of adjustment of ₹ 3.6 lacs towards it. The said payment was made through RTGS in October, 2009 one month prior to the execution of the document (Ex.DW-1/P1). 10. The Trial Court i .....

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