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TMI Blog2021 (11) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... e further either in referring the name of the experts or in depositing the commissioner's fee. However, both the complaints came to be allowed in the circumstances and facts of the case by the trial court. However, the appellate court in the appeals finds that the application filed by complainant in both the cases was not followed by him and not complied with the ingredients of the said Section by naming expert or depositing the amount and allowed the appeal by reversing the judgment passed by the learned trial judge and by acquitting the accused. Thus, if the complainant has filed application and the learned trail judge or learned appellate judge ought to have allowed the matter to see the logical end. Even before mentioning the error of the trial court, the appellate court also should have brought to the notice of the parties regarding the lapses. In this connection, both the learned trial court and appellate court have erred in adopting the hasty approach - matters are to be remanded to the trial court with a direction to the complainant to refer the name of the expert and also deposit the commissioner's fee and the required expenditure within 7 days from the first he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bank of India. The said cheques were issued for discharge of the advance deposit/security amount to be given to complainant and accused had paid ₹ 1,00,000/- in the month of July 2014 and he is liable to repay the sum of ₹ 7,00,000/- to complainant and he had assured to represent the said cheques. Complainant had earlier presented two cheques, which were dishonoured for want of funds and it has been brought to the notice of accused then accused asked him to present the same for second time. Thereafter, complainant presented the said cheques through his banker Vijaya Bank Rajajinagar on 5-11-2014 and 30-10-2014, but they were dishonoured with an endorsement funds insufficient on 7-11-2014 and the same was brought to the notice of the accused. Thereafter, complainant issued legal notice by RPAD on 21-11-2014 which came to be served on accused on 26-11-2014 and even after 15 days of receipt of legal notice, accused did not reply or comply the same and thereby committed the offence punishable under Section 138 of N.I. Act. Thereafter, the complainant presented two complaints. 4. Learned trial judge took cognizance of the offence in both the cases and issued summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at free of cost to the accused. IN CC NO. 7225/2015 Acting u/s. 265 of Cr.P.C. the accused is convicted for the offence punishable u/s. 138 of N.I. Act and sentenced to pay fine of ₹ 3,000/- (three thousand only). In default of payment of fine amount, the accused shall undergo SI for a period of two months. The complainant was awarded compensation of ₹ 4,00,000/- (four lakhs) i.e., double the cheque amount from the accused and the same shall be paid to the complainant within the period of 30 days from the date of this order. In default of payment of this compensation amount, the accused shall undergo simple imprisonment for a period of one year. Office is directed to furnish the copy of this judgment at free of cost to the accused. 6. Aggrieved by the said judgment and order, accused in both the petitions approached the appellate court in Crl.A. Nos. 1338/2015 and 1339/2015 which came to be allowed reversing the judgment and order passed by learned trial judge. The operative portion of the judgment in both the appeals read as under: In Crl.A. NO. 1338/2015 The criminal appeal filed by the appellant/accused under Sec. 374(3) of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are clear: The complainant filed two complaints against the accused before the learned trial judge in CC Nos. 515/2015 and 7225/2015. Complainant claims that the accused issued totally four cheques for an amount of ₹ 8,00,000/- which is nothing but the refund of the security deposit amount which was paid by the complainant towards the lease of the house for which accused is stated to be the owner. The said lease agreement was entered into between the complainant and accused on 22-6- 2011. However, it is stated that during the year 2014, complainant was evicted from the said lease premises on the basis of the decree that was passed in favour of the bank from whom the accused had borrowed loan and that was not within the knowledge of the complainant and as such, the complainant was evicted from the house. 11. Further, there appears to be contradictions in treating the application filed under Section 45 or 43 of the Indian Evidence Act. The trial court has observed in both the cases that application under Section 43 Indian Evidence Act were filed. However, it is stated that the said applications were filed by the accused. Thus, the learned trial judge mis-re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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