APS FOREX SERVICES PVT. LTD. Vs. SHAKTI INTERNATIONAL FASHION LINKERS

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.04.2018 passed by the High Court of Delhi in Crl. L.P. No.258 of 2018 by which the High Court has dismissed the said application for leave to appeal challenging the judgment and order of acquittal passed by the Learned Trial Court acquitting the original accused respondents herein for the offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') and thereby confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant has preferred the present appeal.

(2.) According to the complainant, the appellant is in the business of sale and purchase of Foreign Exchange. That the original accused respondents herein approached the appellant for issuance of Foreign Exchange Currency/USD Travel Currency Card. According to the original complainant appellant herein, a total sum of Rs.19,01,320/ was paid to the accused through VTM (Visa Travel Money Card) which came to be withdrawn by the accused on different days on 10.01.2014, 20.02.2014 and 22.02.2014. According to the complainant, the original accused respondents herein paid Rs.6,45,807/ only leaving a balance of Rs.12,55,513/. According to the complainant, the respondents accused issued four cheques total amounting Rs.9,55,574/, which were issued in favour of the complainant. However, all the aforesaid cheques when presented, came to be dishonoured. According to the complainant thereafter the respondents issued one another cheque bearing No.374941 of Rs.9,55,574/ of the partnership firm namely Shakti International in discharge of the legal liability. According to the complainant when the same cheque was presented the same came to be dishonoured due to "STOP PAYMENT" vide bank memo dated 02.06.2014. Thereafter, the complainant sent a legal notice upon the original accused under Section 138 of the N.I. Act vide notice dated 07.06.2014. Despite the service of the notice, the accused did not make the payment of the cheque amount. Therefore, the original complainant appellant herein filed the complaint before the Learned Metropolitan Magistrate. The Learned Metropolitan Magistrate also believed that the cheque was issued and the same was returned unpaid with remarks "STOP PAYMENT". The Learned Metropolitan Magistrate believed that the accused Sushil Kumar Sharma admitted his signature on the cheque. The Learned Metropolitan Magistrate also believed receipt of the demand notice by the accused persons and nonpayment towards the said cheque. However, thereafter Learned Metropolitan Magistrate observed and held that there is no legal liability as the payment through the card is not established and proved; that the payments are prior to the issuance of the card. Resultantly, the Learned Metropolitan Magistrate dismissed the complaint by judgment and order dated 20.01.2017. Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the Learned Trial Court acquitting the accused, the complainant preferred appeal before the Learned Sessions Court. Learned Sessions Court dismissed the said appeal on the ground that the same is not maintainable. Thereafter the complainant filed the appeal before the High Court. By the impugned judgment and order, the High Court dismissed the appeal and confirmed the order of acquittal passed by the Learned Trial Court. Hence, the original complainant has preferred the present appeal.

(3.) Learned Counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case both the Learned Trial Court as well as the High Court have committed a grave error in acquitting the original accused for the offence under Section 138 of the N.I. Act.