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TMI Blog2016 (1) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... t is averred in the complaint that the accused is a friend of the complainant and on 25.8.2011, the accused has approached the complainant and requested her to give a sum of Rs. 5 Lakhs by way of debt. The complainant has given the same to the accused and on the same day, he has given the cheque in question. On 30.11.2011, the same has been presented in the concerned bank, but the concerned bank has returned the same stating "funds insufficient". Subsequently, on 7.12.2011, a statutory notice has been issued and even after receipt of the same, the accused has not discharged his liability nor given any reply notice and under the said circumstances, the accused has committed an offence punishable under section 138 of Negotiable Instruments Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any reply notice and the trial court, after considering the evidence available on the side of the complainant, has rightly found the accused guilty under section 138 r/w 142 of Negotiable Instruments Act, 1881, but the first appellate court, without considering the fact that no documentary evidence is available on the side of the accused for the purpose of proving that the complainant has run a chit, erroneously acquitted the accused and therefore, the order of acquittal passed by the first appellate court is liable to be set aside and the judgment passed by the trial court is liable to be restored. ( 7. ) The learned counsel appearing for the respondent/accused has contended that before filing complaint, the complainant has given a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant has been examined as P.W.2 and he has also deposed to the effect that except the transaction mentioned in the complaint, no other transaction has been in existence in between him and accused. ( 10. ) At this juncture, it would be more useful to look into Ex.D.1 Statement of the accused, wherein it has been clearly mentioned that on 13.10.2011, Rs. 40,000/- has been withdrawn by the husband of the complainant (P.W.2). ( 11. ) On the side of the appellant/complainant, an inert attempt has been made to the effect that with regard to transaction mentioned in the complaint, a Panchayat has been convened and only on the basis of its decision, Rs. 40,000/- has been given to P.W.2. In fact, this Court has perused the entire averments made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant, P.W.2, by the accused and the same has been withdrawn and also considering that with regard to source of money, no consistent evidence is available on the side of the complainant, the defence put forth on the side of the accused can very well be accepted. ( 15. ) The trial court, without considering the payment of Rs. 40,000/- made on 13.10.2011 in favour of P.W.2 and also without considering that on the side of the complainant with regard to source of money, no consistent evidence is available, has erroneously found the accused guilty under section 138 r/w 142 of Negotiable Instruments Act, 1881. But, the first appellate court, after considering the vital infirmities found on the side of the complainant, has rightly found that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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