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2017 DIGILAW 1287 (RAJ)

Narbada v. Ashok

2017-05-18

VIJAY BISHNOI

body2017
JUDGMENT Vijay Bishnoi, J. - This criminal leave to appeal is preferred by the appellant seeking leave to file appeal against the judgment dated 30.01.2017 passed by the Special Judicial Magistrate NI Act Cases, No. 4, Udaipur (for short ''the trial court'') in case No. 2396/2015 whereby the trial court has acquitted the accused respondent for the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter to be referred as NI Act). 2. The brief facts of the case are that the appellant has filed a complaint under section 138 of the NI Act against the respondent with the allegation that she has advanced a loan of Rs. 50,000/- to the respondent and for the repayment of the said loan the respondent has given her cheque No. 669187, however when the said cheque was presented for realisation in the concerned bank, the same was returned with a remark of "insufficient opening balance". It is stated that notice under section 138 of the NI Act was served upon the accused respondent, however, despite service of the same, the loan advanced by her to the tune of Rs. 50,000/- was not paid by the accused-respondent. 3. The trial court took cognisance against the accused-respondent for the offence under section 138 of the NI Act and has also framed charge against the accused-respondent for the same. 4. In support of the complaint, the appellant has examined himself as PW-1 and her husband Devilal as PW-2 and also got exhibited certain documents. The statement of the respondent was recorded under Section 314 Cr.P.C., 1973 wherein he has stated that he has not given any cheque to the appellant but has given a cheque to her husband Devilal. It is also stated by the accused-respondent that he has already returned all the money to the husband of the appellant and the complaint filed by the appellant is false. 5. The trial court has taken into consideration the statement of the appellant (PW-1) wherein she in her cross-examination has specifically stated that she has not advanced loan of Rs. 50,000/- to the accused-respondent. She has also stated that the respondent is not known to her and he has also not given any cheque to her. She has also pleaded ignorance about the fact that the cheque in question was given by the respondent to her husband. 50,000/- to the accused-respondent. She has also stated that the respondent is not known to her and he has also not given any cheque to her. She has also pleaded ignorance about the fact that the cheque in question was given by the respondent to her husband. The trial court has observed that when the appellant herself is admitting that she has not advanced any loan to the respondent and he is not known to her and he has not given any cheque to her, the charge against the accused-respondent for the offence punishable under section 138 of the NI Act is not made out. 6. Having heard learned counsel for the appellant, I do not find any merit in this criminal leave to appeal. 7. Hence, this criminal leave to appeal is dismissed.