9911796707
TMI Blog2017 (3) TMI 1891X X X X Extracts X X X X X X X X Extracts X X X X ..... t (hereinafter referred to as the complainant) filed a complaint under Section 138 of the Act in court of learned Judicial Magistrate 1st Class, Solan, District Solan H.P. alleging therein that since accused/petitioner had friendly relations with complainant, therefore, he, on his request, advanced Rs. four lacs to petitioner on account of his personal requirement. Complainant further alleged that accused promised the complainant that amount would be repaid in the month of January, 2010 and accordingly, with a view to discharge his liability, accused/petitioner issued two cheques bearing Nos. 964173 dated 6.1.2010 and 964172 dated 7.1.2010 amounting to Rs.2 lacs each drawn on UCO Bank, Solan Branch. However, the fact remains that on presentation of the aforesaid cheques, having been issued by accused, the same were dishonoured by Bank of Baroda vide memo dated 7.1.2010 on account of insufficient funds. Complainant, on receipt of aforesaid memo, got a legal notice issued to accused/petitioner calling upon him to make payment good qua cheques but since no payment was made by accused, complainant was compelled to initiate proceedings under Section 138 of the Act against the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for admission on 10.3.2017. 7. Mr. Vikas Chandel, learned counsel representing the petitioner, vehemently argued that impugned judgments passed by learned Courts below are not sustainable and same are not based upon correct appreciation of evidence adduced on record by respective parties and as such, same deserve to be quashed and set aside. Mr. Chandel further argued that bare perusal of evidence led by parties clearly suggests that both Courts below have miserably failed to appreciate the evidence in its right perspective. Mr. Chandel, learned counsel representing the petitioner, further contended that there is no evidence led on record by complainant that amount, if any, was advanced to accused on account of some lawful consideration. He also stated that cheques, as alleged by complainant, were issued on account of security as agreement was entered upon between the parties for sale of land. In the aforesaid background, learned counsel representing the petitioner prayed that petitioner may be acquitted from charges framed against him under Section 138 of the Act, after setting aside the judgments recorded by learned Courts below. 8. Mr. Hamender Chandel, learned counsel re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record successfully proved on record that accused/petitioner had issued two cheques bearing Nos. 964173 and 964172, Ext.CW2/A and Ext.CW2/B amounting to Rs.2 lacs each in lieu of the amount taken by him from complainant. Complainant, while appearing before the learned trial Court as CW2, has categorically stated that he had advanced an amount of Rs. four lacs to accused on his request and accused agreed to return the same within three months in the month of September and in order to discharge such liability, accused issued two cheques Ext.CW2/A and Ext.CW2/B in favour of complainant. He further stated that he presented aforesaid cheques for collection with bank on 7.1.2010 but the same were returned unpaid vide memos Ext.CW2/D and Ext.CW2/E for want of sufficient funds in account of accused. He also successfully proved on record that after dishonouring of the cheques, he had got issued legal notice Ext.CW2/F dated 3.2.2010 calling upon accused to make payment, through registered cover vide postal receipt Ext.CW2/G as well as under receipt of postal certificate Ext.CW2/H. Cross examination conducted on this witness/complainant, nowhere suggests that accused was able to extract a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of affidavit suggests that petitioner/accused received Rs. four lacs from complainant and acknowledged the same by issuing the receipt. Most importantly, para 5 of agreement suggests that accused/petitioner agreed to return an amount of Rs. four lacs to complainant within three months from the date of agreement or to the bank concerned, failing which, reserved right to complainant to get the sale deed executed in his favour. This Court was unable to find out any record adduced by accused/petitioner suggestive of the fact that sale deed, if any, was executed between the parties pursuant to agreement Ext.D1. Hence defence as taken by accused/petitioner under Section 313 Cr.P.C. was rightly not taken into consideration by learned Courts below while holding petitioner guilty of having committed an offence punishable under Section 138 of the Act. 12. Accused, while appearing as DW1, reiterated that he had handed over cheques in question to complainant as security for performance of agreement Ext.D1. He also admitted execution of agreement Ext.D1 i.e. of 26.2.2009 and he also admitted that under agreement he had obtained a sum of Rs. four lacs from complainant. However, he further st ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
