9911796707
TMI Blog2022 (9) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... t under appeal is bad in law and that the same has not been passed by properly considering the evidence-on-record. The learned Magistrate failed to appreciate the evidence-on-record both oral and documentary, came to erroneous findings and held that the cheque was not issued to pay off legally enforceable debt or any liability and as such, the judgment is liable to be set aside. By the said judgment the learned Magistrate has caused serious miscarriage of justice by not holding the respondent/accused person guilty of the offence punishable under Section 138 of the N.I. Act inspite of the complainant proving the case against the accused/respondent. The complainant's case before the Trial Court was that the complainant has been authorized to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was kept as security and the complainant taking advantage of that cheque filed the complaint against the accused person after 15 years of closure of the said account. The learned Magistrate considering the materials-on-record was pleased to find that the complainant did not produce any cogent evidence to show as to when the disputed cheque was issued to payoff legally enforceable debt or any other liability and accordingly rightly held that the accused/respondent could not be held liable to have committed the offence punishable under Section 138 of N.I. Act and accordingly acquited the accused of the said charge. Evidence on record The appellant/complainant as Prosecution witness no. 1 (PW-1) has deposed before the Court on oath, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anch. He has denied that he is liable to pay any debt to the complainant's company, Calcutta Branch. It is specifically stated by the accused/respondent that when he started his business with the complainant's company, Asansol Branch, the disputed cheque of this case was taken as security from him before 1990 and was in their custody. The complainant has now misused the said cheque. The business relation with the complainant's company and the accused was from 1984 to 1990 and transaction was usually by cheque and cash. It is further stated that he did not issue the disputed cheque in the year 2004 and has denied the complainant's case. On cross-examination, the complainant has admitted that they had a branch in Asansol. He could not say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the period from 10th March, 1981 to 21st July, 1990. They have stated that the Branch was mechanized in the year 2001. It has been stated by the Deputy Manager of the Bank in writing that after 21st July 1990 the ledger is not traceable and after computerization it is seen that there was no such account in the system. From Exhibit-E it is clear that after 21st July, 1990 there is no account of accused respondent with the bank. It is the case of the accused respondent that the accused had business transaction with the complainant, Asansol branch, till the year 1990 and the disputed cheque in this case was given as a security. The complainant did not use the said cheque till 1990. All on a sudden the complainant has presented the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also bank account, which supports his statement that his business and the bank account were closed in the year 1990. It is the case of the appellant complainant that as all the ingredients required to prove a case under Section 138 of the Negotiable Instrument Act have been duly proved regarding dishonour of the cheque, the accused should have been convicted. The contention of the accused respondent is that the cheque was kept as security with the complainant's company and the business of the accused was closed down in the year 1990 as also the bank account was closed in the year 1990 and it is a fact that the appellant could not prove a single document to show that there was a business transaction between the accused and the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business was also closed in the same year. There has been no business transaction between the parties to this case from 1990 to 2004. Exhibit 6/6, is the cheque just prior to the disputed cheque marked as Exhibit 1, the gapping period between the said two cheques is fifteen years. This goes against the case of the complainant and totally supports the defence of the accused respondent. It has been clearly proved that there was absolutely no business transaction between them from the year 1990 and 2004 and the disputed cheque marked as Exhibit 1 had been kept as security and was misused by the complainant to harass the respondent company in the year 2004, after 15 years. Accordingly this Court finds no reason to interfere with the judgemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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