ASHUTOSH MOHUNTA, ACJ. - (1.) THE present appeal is directed against the judgment dated 01/08/2001 passed by the Additional Chief Judicial Magistrate, Panipat vide which the respondent has been acquitted for the offence under Section 138 of the Negotiable Instruments Act, 1881.
(2.) THE brief snap shot of the present case capsuled in the complaint is that complainant is manufacturer and supplier of handloom fabrics, durries, bedcovers, furnishing fabrics etc. Accused purchased 100% cotton handloom durries from the complainant worth Rs.3,26,565.51 vide bill No.248 dated 25/09/1995 on credit basis. As part payment of the said amount, the accused issued a cheque No.47844 dated 26/09/1995 for Rs.2,00,000/ -drawn on State Bank of India, G.T. Road, Panipat in favour of the complainant. The complainant presented the said cheque in his account which was with State Bank of India, Industrial Area, Panipat for payment but the same was dishonoured and returned to his bank by the drawee bank vide memo dated 28/09/1995. The complainant informed the accused with regard to the said lapse and on the same the accused assured the complainant that the same would be honoured if presented next time. On the said assurance, complainant presented the cheque again in his bank but the same was dishonoured on account of non -arrangement of funds vide memo dated 7/2/1996. Thereafter the complainant served a legal notice to the accused by post which was duly replied by him firstly on 29/02/1996 and secondly on 09/03/1996. Since the accused did not make the payment as demanded in the said legal notice to the complainant, hence the present complaint was filed by invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881 in which the accused were summoned to face trial. In support of the accusations, complainant examined PW1 Mr. S.N. Garg, Deputy Manager, SBI, PW2 Mr. R.S. Walia, Godown Keeper and PW3 himself and also led documentary evidence. On the contrary, respondent examined himself as DW1 and Raman Kumar as DW2. In support of his defence, he also led documentary evidence. No one on behalf of the appellant has put in appearance to assist this court.
(3.) THE question which requires determination by this court is that whether the cheque which was given to the complainant by the accused was for a legally enforceable debt or was simplicitor a security cheque?;