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2017 DIGILAW 1480 (RAJ)

BRIJ MOHAN v. VIRENDRA BHANDARI

2017-07-05

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. By way of this application preferred under Section 378(4) Cr.P.C., the applicant complainant seeks leave to file an appeal against the judgment dated 23.10.2013 passed by the learned Special Judicial Magistrate, Negotiable Instruments Act Cases No.2, Udaipur in Regular Criminal Case No.4083/2009 whereby, the respondent Virendra Bhandari was acquitted from accusation under section 138 of the N.I. Act. 2. I have heard and considered the arguments advanced at the Bar and have gone through the impugned judgment and the original record. 3. Brij Mohan was the original complainant who preferred the complaint against the respondent Virendra Bhandari under section 138 of the N.I. Act with the allegation that the accused had taken loan from the complainant, for the repayment whereof, he advanced two cheques nos.003707 dated 26.9.2008 and 003708 dated 26.9.2008, each for a sum of Rs. 1 lakh to the complainant. The cheques were presented for encashment but were dishonoured on account of lack of funds. The complainant proceeded to give a notice to the accused demanding payment of the cheque amount. However, the accused failed to respond to the notice. Upon this, the complaint was presented in the Court. The trial Court acquitted the accused from accusation holding that the complainant failed to prove that any loan had ever been advanced to the accused. The complainant alleged in his complaint that the loan had been given to the accused was a personal loan. However, the amount of loan or the date on which it was extended, was not mentioned in the complaint. The same was the position in the evidence affidavit of the complainant wherein also, neither the amount of loan nor the date of advancement thereof was clarified. In cross examination, the complainant admitted that the loan amount had been given to the accused from his personal funds. He was an income tax assessee. He claimed to have given loan to the accused by cheques. In the next breath, he admitted that he did not give the loan to the accused from his own funds but rather the loan was advanced from the firm's funds. He further admitted that he was not having a money lending license. The accused took a defence that previously, he and the complainant used to run a joint business and in relation thereto, blank signed cheques were lying with the complainant which he later on misused. 4. He further admitted that he was not having a money lending license. The accused took a defence that previously, he and the complainant used to run a joint business and in relation thereto, blank signed cheques were lying with the complainant which he later on misused. 4. Upon a consideration of the above referred material, this Court is in agreement with the findings recorded by the trial Court that the complainant failed to establish by cogent and plausible evidence that the accused was under a legal liability to make payment of the cheque amount to him. The exact amount of the so-called loan was not made clear either in the complaint or in the sworn testimony of the complainant. The complainant gave contradictory evidence on the issue as to who had advanced loan to the accused whether he individually or the firm. Thus, apparently the trial Court was perfectly justified in holding that the complainant could not establish the necessary ingredients of the offence under section 138 of the N.I. Act against the accused. Furthermore, the cheques which were given by the accused to the complainant were of the firm named Vinayak Lubricants which was not made a party in the complaint. The complainant failed to prove that the said firm was in any manner liable to make any payment to him. As a consequence of the above discussion, I am duly satisfied that the conclusions drawn by the trial Court for acquitting the accused respondent do not suffer from any shortcoming either factual or legal so as to require interference by this Court. 5. Resultantly, the instant application seeking leave to file appeal is dismissed as being devoid of any merit.