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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 ..... a sum of ₹ 40,000/- has been given to the husband of the complainant, P.W.2, by the accused and the same has been withdrawn and also considering that with regard to source of money, no consistent evidence is available on the side of the complainant, the defence put forth on the side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. The trial court, without considering the payment of ₹ 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 infirmitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 Act, 1881. ( 4. ) The trial court, after considering the divergent contentions raised on either side, has found the accused guilty under section 138 r/w 142 of Negotiable Instruments Act, 1881 and sentenced to undergo six months simple imprisonment and also imposed compensation of ₹ 4,70,000/- to the complainant. Against the conviction and sentence passed by the trial court, the accused as appellant has preferred Criminal Appeal No. 27 of 2014 on the file of the first appellate court. ( 5. ) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate 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 statutory notice, wherein it has been clearly mentioned to the effect that she has received the amount as hand loan from her friend so as to advance the amount mentioned in the complaint to the accused, whereas the complainant has been examined as P.W.1 and her specific evidence is that by way of selling her jewels, she has kept the amount in question in the house and further a cheque has been given in the name of husband of the defacto complainant (P.W.2) and the same has been encashed and the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ₹ 40,000/- has been given to P.W.2. In fact, this Court has perused the entire averments made in the complaint, wherein no mention has been made to the effect that on 13.10.2011, a Panchayat has been convened and only on the basis of its decision, a cheque has been given by the accused in favour of P.W.2. Since no necessary averments have been made in the complaint, it is needless to say that the contention put forth on the side of the appellant/complainant with regard to ₹ 40,000/- cannot be accepted. ( 12. ) Before filing the present complaint, a statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the cheque in question has not been given in connection with legally enforceable debt. In view of the discussions made earlier, this Court has not found any merit in the contentions put forth on the side of the appellant/complainant and altogether, the present Criminal Appeal deserves to be dismissed. In fine, this Criminal Appeal is dismissed. The order of acquittal dated 8.9.2015 passed in Crl.A.No.27 of 2014 by the first appellate court is conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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