MOHD SALIM Vs. MANILAL VYAS

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 7-8-2008 passed by JMFC, Ihdore in Criminal Case No. 24241/2007, whereby the complaint filed by the appellant under Section 138 of Negotiable Instruments Act was dismissed and the respondent was acquitted, the present appeal has been filed.

(2.) SHORT facts of the case are that appellant filed a private complaint under Section 138 of Negotiable Instruments Act (which shall be hereinafter called as 'the N.I. Act') alleging that appellant is the owner of house No. 125, Jawahar Marg, Indore. It was alleged that respondent is the tenant in the shop j situated at ground floor @ Rs. 3,000/- per month. It was alleged that rent of j Rs. 39,000/- was outstanding against the respondent. Further case of the appellant was that against the aforesaid liability cheque of Rs. 39,000/- of Indore Premier Co-operative Bank Ltd., Rajwada, Indore, bearing No. 216702 payable on 21-6-2007 was issued by the respondent with an assurance that upon presentation the cheque will be encashed. It was alleged that the said cheque was presented by the appellant through its banker but the said cheque was returned with a memorandum "exceeds arrangements". Thereafter appellant issued a notice on 27-6-2007 but the same was not received by the respondent, therefore, it was returned with an endorsement "intimation given". It was alleged that the act of the respondent is amounting to an offence punishable under Section 138 of N.I. Act. After taking cognizance and issuance of notice | and also after framing of charges and recording of evidence respondent was acquitted, hence the present appeal has been filed.

(3.) LEARNED Counsel further submits that the appellant was holder of the cheque. Appellant proved the fact that the cheque was issued by the respondent, which was also not disputed by the respondent, therefore, the burden was on the respondent to disprove that the cheque was not for Rs. 39,000/- but was for Rs. 2,600/-. It is submitted that to prove this fact the learned Trial Court committed error in dismissing the application filed by the appellant. It is submitted that appeal filed by the appellant be allowed and the impugned judgment, whereby the respondent was acquitted be quashed.