JUDGMENT Hon’ble Alok Singh, J (Oral). 1. Complainant has preferred this appeal challenging judgment and order dated 08.07.2010 passed by fourth Additional Judicial Magistrate, Haridwar whereby the Magistrate was pleased to dismiss the complaint filed by the complainant (appellant herein) under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) and acquitted the respondent no. 2, herein. 2. Brief facts of the present case, inter alia, are that respondent no. 2 had taken Rs. 60,000/- from the complainant on 26.05.2005 with a promise to refund the same within four months; in lieu thereof respondent no. 2 had handed over a postdated cheque of 26.09.2005 of the State Bank of India, Ranipur Branch bearing no. 701243 of Rs. 60,000/- under his signature with a promise that on tendering the same, the same would be encashed; complainant had submitted the cheque so issued by the respondent on 06.10.2005, however, the same was dishonoured due to “insufficient fund”. Complainant had issued a demand notice dated 14.10.2005, which was received by respondent no. 2 on 18.10.2005, however, respondent no. 2 failed to make payment of the cheque within the prescribed period. Thereafter, appellant filed a complaint before the Magistrate, who recorded his statements and before the trial court, appellant had proved the dishonour slip as well as the demand notice. 3. I have heard Mr. Jagdish Singh Bisht, learned counsel for the appellant, Mr. H.O. Bhakuni, learned Brief Holder for the State and Mr. Deepak Sharma, learned counsel for the respondent no. 2 and have carefully perused the record. 4. Respondent no. 2 appeared before the trial court in the witness box. During his cross examination he admitted that on 25.11.2008, he had moved an application before the court below to the effect that he would pay the entire amount of cheque to the complainant on or before 15.01.2009; he has also admitted his signatures on the cheque, in question. 5. In the firm opinion of this Court, if respondent no. 2 has admitted his liability by moving an application before the trial court on 25.11.2008 with a promise to refund the cheque amount on or before 15.01.2009 and has admitted his signature on the cheque, then dismissal of the complainant on hyper technical grounds like notice had some overwriting and cutting seems to be unjustified. Therefore, impugned order is not sustainable in the eyes of law. Therefore, impugned order is not sustainable in the eyes of law. Accordingly, the appeal is allowed. Impugned judgment and order is set aside. Respondent no. 2 is convicted under Section 138 of the Act and sentenced to undergo 2 years simple imprisonment and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he shall further undergo three months simple imprisonment. It is further directed that amount of fine, if deposited, shall be paid to the complainant / appellant herein. 6. Let a copy of this judgment be sent to the court below for compliance along with lower court record.