Delhi High Court
Kali Charan Goswami vs State & Anr on 15 May, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 15th May, 2019
+ CRL.L.P.333/2019
KALI CHARAN GOSWAMI ..... Petitioner
Represented by: Mr. C.M. Mathur, Advocate
versus
STATE & ANR ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State.
None for Respondent No. 2
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
CRL.L.P. 333/2019
1. Aggrieved by the judgment dated 12th March 2019, whereby the
learned Metropolitan Magistrate acquitted the respondent for the offence
punishable under Section 138 Negotiable Instruments Act, 1881 the
petitioner/complainant has preferred the present leave petition.
2. Facts of the present case as per the complaint are that the complainant
and Respondent No.2 had friendly relations. In April 2014 the complainant
gave Rs.4,75,000/- in cash as friendly loan to Respondent No.2 on the
condition that he would repay the same within a period of twelve months. In
November 2015 in order to discharge the liability the Respondent No.2
issued a cheque bearing no. 000013 dated 21st December 2015 for a sum of
Rs. 4,75,000/- drawn on Bank of Baroda, Mandoli Branch, Nand Nagri Bus
Depot, Delhi in favour of the petitioner. On presentation of the aforesaid
cheque, it was dishonoured with remarks "funds insufficient" vide bank
return memo dated 29th December 2015. Legal demand notice dated 11th
January 2016 was sent to Respondent No.2. Despite the service of legal
notice, Respondent No.2 failed to make the payment. Hence, the complaint.
3. Notice under Section 251 Cr.P.C. was served upon Respondent No.2
to which he pleaded not guilty and claimed trial. In his defence he stated that
the petitioner who was his cousin brother had stolen the blank signed cheque
from his house in respect of which he had also filed an NCR.
4. The petitioner examined himself as CW-2 and tendered his evidence
by way of an affidavit vide Ex.CW-1/A. He relied upon the cheque in
question vide Ex.CW-1/1, cheque returning memo Ex.CW-1/2, legal
demand notice vide Ex.CW-1/3, postal receipt vide Ex.CW-1/4, tracking
reports vide Ex.CW-1/5 and reply to legal notice vide Ex.CW-1/6.
5. Statement of respondent was recorded under Section 313 Cr.P.C.
wherein he reiterated his statement given under Section 251 Cr.P.C. He
admitted the factum of dishonour of cheque in question and also the receipt
of legal notice.
6. Perusal of the record reveals that the petitioner was unable to provide
the details of the disbursement of the loan or the date on which the cheque in
question was handed over to him by Respondent No.2. The petitioner has
relied upon the reply to the legal notice sent by Respondent No.2 wherein he
has specifically denied the factum of him having taken any friendly loan and
also specifically denied that the cheque in question was issued for discharge
of any liability. Furthermore, the petitioner has also not mentioned the
advancement of the abovementioned loan amount in his Income Tax Return.
The petitioner further testified that the loan was disbursed in the presence of
his wife and son but has failed to examine them in court.
7. Considering the facts noted above findings of the learned
Metropolitan Magistrate cannot be said to be perverse warranting
interference of this Court.
8. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
MAY 15, 2019
'vj'
