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TMI Blog2017 (4) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ount ₹ 5 lacs. The Trial Court failed to record any finding if there was any payment by the respondent after the issuance of the admitted cheque (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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uested to repay the loan amount. He sought 2 3 months time to make 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 cognizance was taken and the respondent was summoned to face trial for commission of offence under Section 138 Negotiable Instruments Act. In response to notice under Section 251 Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent 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 what mode. 6. In 313 Cr.P.C. statement, the respondent came up with a new plea claiming that he had already made the payment to the complainant towards the satisfaction of friendly loan that he had taken. He further claimed that the cheque in question was issued as a security and despite the entire payment made, the appellant did not return it. Again, the respondent did not give specific dates when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 ₹ 8.6 lacs; he had returned a sum of ₹ 3.6 lacs during the continuation of the earlier loan of ₹ 5 lacs and legal notice dated 16.11.2010 demanding ₹ 5 lcas was received by him. He also admitted that ₹ 50,000/- were paid by him to the appellant 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 note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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