R M MOHAN Vs. SARASWATHI

JUDGEMENT

(1.) This appeal has been filed by the complainant challenging he dismissal of the complaint under Section 256(1) Cr.P.C. and thereby the respondent got acquitted of the offence under Section 138 of the Negotiable Instruments Act (in short "the N.I.Act").

(2.) The appellant / Mohan, the complainant paid a sum of Rs.1,00,000/- on 30.07.2002 on the strength of the promise made by the respondent to repay the same along with interest at 18% p.a. After getting the amount, the respondent issued a cheque for a sum of Rs.1,00,000/-; when the cheque was presented for payment, it got returned with an endorsement "insufficient funds" (returned cheque Ex.A.1); the complainant issued a notice under Ex.P4, which was received by the respondent as per acknowledgement under Ex.P.5; even thereafter, as the amount was not repaid, complaint was filed.

(3.) The Court, on consideration of the materials placed before it, gave a finding that in the absence of proof as to when the appellant gave a sum of Rs.1,00,000/- to the accused, the offence under Section 138 of the N.I.Act, cannot be held to be proved. The Court also came to the conclusion that presumption available under Section 138 of the N.I.Act has been sufficiently rebutted. These findings are under challenge in this appeal.