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TMI Blog2018 (6) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000/- each. The appellant herein has presented the said cheques in the bank on 18.10.2007 for encashment and the said cheques were returned as 'funds insufficient' in the respondent's account. Hence, the appellant has issued a statutory notice on 16.11.2007 calling upon the respondent to pay the cheque amount within 15 days from the date of receipt of the said notice. The respondent has received the said notice on 27.11.2007 and issued a reply notice on 30.11.2007 with false averments, but he did not pay the cheque amount. Hence, the appellant has filed a private complaint requesting the court to punish the respondent u/s.138 of the Negotiable Instruments Act. For the sake of convenience, the parties are referred to as descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.11.2007. The postal acknowledgment has been marked as Ex.P8. Instead of making payment, the accused has sent a reply notice (Ex.P9) dated 30.11.2007 with false averments. Hence, the complainant has filed a private complaint requesting the court to punish the accused u/s.138 of Negotiable Instruments Act. 6. The evidence on the side of the complainant was closed with PW1 and thereafter, the learned Metropolitan Magistrate has questioned the accused u/s.313 of Cr.P.C., with regard to the incriminating circumstances found in the evidence of the PW1. The accused denied the same and has stated that he is having evidence on his side. He examined himself as DW1. 7. DW1 has stated in his evidence that he has not borrowed any amount from the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:- 1.Whether the learned Metropolitan Magistrate was right in acquitting the accused? 2.Whether this appeal has to be allowed ? 11. Point Nos.1 and 2: The learned counsel for the appellant/complainant has submitted that the accused has admitted in his evidence that he has issued Ex.P1 and Ex.P2/cheques and as such, the presumption u/s.139 of the Negotiable Instruments Act will come into play. He further submitted that the accused has not rebutted the said presumption. He further submitted that the accused has admitted that he has issued Ex.P1 and Ex.P2 cheques as security for the loan obtained by his brother-in-law, Babuji and his wife Mumtaj, and therefore, he is liable to be punished u/s.138 of Negotiable Instruments Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court has rightly acquitted the accused and therefore, he requests to dismiss the appeal. 13. The case of the complainant is that on 27.02.2006, the accused borrowed a sum of Rs. 1,00,000/- from him and after repeated demands, the accused has issued two cheques each for Rs. 50,000/- dated 18.10.2007. According to the accused, he did not receive any amount from the complainant. His further case is that his brother-in-law Babuji and his wife Mumtaj have borrowed a sum of Rs. 1,00,000/- from the complainant on 27.02.2006 and in order to evident the same, Ex.D1 loan deed was executed, in which, he signed as one of the witnesses. His further case is that subsequently on 12.03.2006, the complainant obtained Ex.P1 and Ex.P2 cheques by force fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m as security until the borrowers repay the said amount. Ex.D4 postal acknowledgment shows that the complainant has received the Ex.D3 letter on 18.10.2007 and that being so, the contention of the complainant that on 18.10.2007, Exs.P1 and P2 cheques were issued by the accused would not be true. After issuing Ex.D3 letter on 12.10.2007, the accused would not have issued Ex.P1 and Ex.P2 cheques on 18.10.2007. 16. It is also to be pointed out that the complainant not at all whispered about the receipt of Ex.D3 letter in Ex.P7 notice which was sent by the complainant on 16.11.2007. So it appears that in Ex.P7 notice, the complainant has wilfully suppressed the receipt of Ex.D3 notice. 17. The decisions cited by the learned counsel for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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