Bela M. Trivedi, J. - (1.) THE present appeal has been filed by the appellant -complainant challenging the legality and validity of the judgment and order dt. 04.10.2006 passed by the learned Addl. Civil Judge (S.D.) & Addl. Chief Judicial Magistrate No. 12, Jaipur City, Jaipur (hereinafter referred to as the 'trial Court') in the Complaint No. 506/2003, whereby the trial Court has acquitted the respondents (original -accused) from the charges levelled against them under Sec. 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'said Act'). The short facts of the case of the appellant -complainant before the trial Court were that the complainant had good relations with one Shri Suresh Khandelwal, who also happened to be the friend of the accused -respondent No. 2 Shankar Lal Khandelwal. In the month of March, 2002, the accused -respondent No. 2 Shankar Lal Khandelwal came to the residence of the complainant along with said Suresh Khandelwal and requested the complainant to give loan of Rs. 1,50,000/ - which he needed for his business purposes. The complainant considering his good relations with Suresh Khandelwal gave a loan of Rs. 1,50,000/ - to the said accused respondent No. 2 Shankar Lal Khandelwal. According to the complainant, the said accused Shankar Lal Khandelwal thereafter gave three cheques each of Rs. 50,000/ - bearing Nos. 046019 dt. 05.04.2002, 046020 dt. 10.04.2002 and 046021 dt. 15.04.2002 of Allahabad Bank, putting his signatures thereon and assured the complainant that the said cheques would be honoured. The complainant thereafter presented the said three cheques on 04.06.2002, however, the said cheques were returned by the Bank dishonored with the remark of 'stop payment'. The complainant thereafter sent a notice dt. 19.06.2002 to the accused through his counsel, which was replied by the accused through their counsel. Since the accused did not make payment of the said cheques within the prescribed time limit, the complainant filed the complaint before the trial Court against the accused -respondents under Sec. 138 of the said Act. The complainant had examined himself as PW -1 and after recording the statement of the accused under Sec. 313 of Cr.P.C. by the trial Court, the accused also examined himself as DW -1 and his brother Tikam Khandelwal as DW -2 in support of his defence that no such cheques were issued by him towards any debt or liability, and that the complainant had misused the said cheques which were lost, and for which he had also informed the concerned -Bank for stopping the payment.
(2.) THE trial Court after appreciating the evidence on record acquitted the respondents -accused from the charges levelled against them vide impugned judgment and order, against which, the present appeal has been filed by the appellant -complainant. It has been sought to be submitted by learned counsel Mr. Nikhil Simlote for the appellant that the respondent No. 2 -accused had admitted his signatures on the cheques in question and therefore a presumption is required to be raised that the said cheques were issued by him towards the discharge of his debt of Rs. 1,50,000/ -. Relying upon the documents annexed to the appeal, he has submitted that admittedly the accused had not lodged any complaint as regards the loss of his cheques and that the accused having admitted his close relationship with the said Suresh Khandelwal in his presence the complainant had given money to the accused, the trial Court was required to raise the presumption against the accused in view of Sections 118 and 139 of the said Act.
(3.) THE learned Sr. counsel Mr. M.M. Ranjan for the respondent -accused, however supporting the findings of the trial Court recorded in the impugned judgment, submitted that the accused, right from the beginning, had denied to have gone to the place of the complainant or borrowed the money or issued any cheques in question. On the contrary, as admitted by the complainant himself that the complainant did not know the accused Shankar Lal Khandelwal and had seen him for the first time in the Court, as observed by the trial Court in the judgment, and therefore the whole story of the complainant, of his lending of Rs. 1,50,000/ - to the accused stands nullified from his own deposition. He also submitted that the accused had duly rebutted the presumptions by examining himself and his brother Tikam Khandelwal and proved that the said cheques were not given to the complainant for discharging any debt or liability. The said cheques were stolen from his office and were misused by the complainant. According to Mr. Ranjan, the trial Court has rightly observed that the complainant had failed to prove his case beyond reasonable doubt and rightly acquitted the accused from the charge levelled against him.;