- (1.) Prayer in this application is for grant of leave to appeal against the judgment, dated 19.1.2011, passed by the learned Special Judicial Magistrate Ist Class, Bathinda, whereby the complaint filed by the applicant, Anil Singla, for the offence punishable under Section 138 of the Negotiable Instruments Act, was dismissed.
(2.) The brief facts of the case are that the applicant, Anil Singla, had filed a complaint alleging that the respondent-accused, Sanjay Kumar, had borrowed a sum of Rs.65,000/- from him in the month of May, 2006 and in lieu thereof issued a cheque bearing No. 830315, dated 15.7.2006, drawn on Corporation Bank, Bathinda. However, on presentation of the said cheque for encashment, the same was returned by the bank with the remarks, "Insufficient Funds" in the account of the respondent-accused. A legal notice was issued to the respondent-accused and after completing the formalities, the complaint was filed. Preliminary evidence was led by the applicant-complainant and on 10.1.2007, the learned Judicial Magistrate passed the summoning order. The respondent-accused appeared before the learned Trial Court and notice of accusation was served upon him for the offence punishable under Section 138 of the Negotiable Installments Act, to which he pleaded not guilty and claimed trial. In order to substantiate the allegations, the applicant-complainant appeared as CW-1 and closed his evidence. The statement of the respondent-accused in terms of Section 313, Cr.P.C., was recorded. He denied the incriminating evidence and pleaded innocence. No defence evidence was led by the respondent-accused.
(3.) After hearing the counsel for the parties, the learned Trial Court dismissed the complaint and acquitted the respondent accused. The learned Trial Court has come to the conclusion that no date for advancement of the loan was mentioned in the complaint; the applicant-complainant specifically admitted in his cross-examination that he was dealing in Kitchen Accessories but was not maintaining the account books; the applicant-complainant failed to produce any document showing that the loan was advanced to the respondent-accused; in spite of the fact that the applicant-complainant was an income-tax assessee, he failed to bring on record the income-tax returns filed by him showing that Rs.65,000/- were given to the respondent-accused as a loan; the legal notice issued to the respondent-accused was not signed by the applicant-complainant; according to the provisions of Section 269SS of the Income-tax Act, 1961, any loan more than Rs.20,000/- was to be paid by way of an account payee cheque only, which the applicant-complainant failed to prove; and even the applicant complainant filed to substantiate on record that he had the capacity to advance Rs.65,000/- to the respondent-accused as loan.;