IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 276 of 2002. Judgement reserved on: 21.4.2009. Date of decision: 28.4.2009. Pawan Kumar ….. Appellant. Vs. Ram Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anand Sharma, Advocate. For the Respondent : Mr. Rakesh Jaswal, Advocate. Kuldip Singh, Judge. The appellant was complainant in Private Complaint No. 82-II/98, under Section 138 of Negotiable Instruments Act, 1881 (for short, the Act), which was dismissed by the learned Chief Judicial Magistrate, Chamba on 4.3.2002. 2. The brief facts of the case are that appellant on 22.7.1997 had filed a complaint under Section 138 of the Act on the grounds that respondent took a loan of Rs.50,000/- from the appellant. The respondent had issued cheque in favour of appellant on 15.12.1996 amounting to Rs.50,000/-, which on presentation on 19.5.1997 was returned unpaid on 25.5.1997 with an endorsement “referred to drawer”. The appellant approached the respondent, who requested the appellant to present the cheque again with an Whether the reporters of the local papers may be allowed to see the Judgment? …2… assurance that cheque would be encashed. The appellant again presented the cheque on 14.6.1997. The same was returned unpaid with an endorsement “referred to drawer”. The appellant served a notice on 21.7.1997 through registered post, which was acknowledged by the respondent, but even after the expiry of 15 days allowed by the appellant for payment, the respondent failed to make the payment to the appellant, hence complaint. The learned Chief Judicial Magistrate recorded preliminary evidence and issued process against the respondent under Section 138 of the Act. The respondent put in appearance and notice of accusation was put to him for having committed an offence punishable under Section 138 of the Act to which the respondent pleaded not guilty and claimed trial. The learned Chief Judicial Magistrate acquitted the respondent on 4.3.2002, hence the present appeal. 3. CW 1 Pawan Kumar has stated that respondent had issued cheque Ex. C-1 on 15.12.1996 in favour of the appellant, the cheque was presented in the bank but was not encashed. This fact was brought to the notice of respondent, who told that he would be making the payment in another 15-20 days. The cheque was again presented in the bank but was not cleared on 14.6.1997 on the ground that respondent had no amount in his account for encashment of the cheque. A notice Ex. C-2 was issued to respondent, postal receipt is Ex. C-3 and acknowledgement Ex. C-4. The respondent did not make the payment even after the notice. In cross-examination, he has stated that the cheque was dishonoured on 14.6.1997. The …3… notice was issued on 21.6.1996 and this date was pleaded in the complaint. 4. CW 2 Raj Kumar, Accountant, H.P. Urban Cooperative Bank Limited, Chamba has stated that cheque Ex. C-1 was first time presented on 20.5.1997 and thereafter on 14.6.1997 and was dishonoured. CW 3 S.R. Tandon, Assistant Manger, PNB, Chamba has stated that cheque dated 15.12.1997 amounting to Rs.50,000/- was presented by Pawan Kumar was of Ram Singh. This cheque was returned as signature on this cheque was not tallying with the signature of Ram Singh as per record. The cheque was again presented and was returned on the ground that account was closed and the cheque was returned which is Ex. C-1. 5. The case of the appellant is that respondent had issued a cheque Ex. C-1, which was presented twice and on both occasions it was dishonoured. CW 3 S.R.Tandon has stated that cheque was dishonoured on the first presentation on the ground that signatures of Ram Singh on cheque Ex. C-1 were not tallying. The cheque Ex. C-1 on the second time was returned on the ground that account was closed. It is not the case of the appellant that the cheque Ex. C-1 was again got signed from respondent or objection of bank regarding signature of Ram Singh on cheque EX. C-1 was removed and thereafter it was again presented in the bank for encashment. It means, the first objection of the bank regarding signature of respondent Ram Singh was not removed. It was not clarified by the appellant from the bank witnesses, whether cheque Ex. C-1 was returned only on the ground of A/C closed or on the ground of …4… signature also. It can be safely assumed that once the objection of validity of the signature of Ram Singh on Ex. C-1 was raised by the bank and that objection was not removed in that case the dispute regarding signature of Ram Singh on Ex. C-1 was very much in existence when cheque was returned second time. 6. This apart, the appellant has failed to prove that notice Ex. C-2 dated 20.6.1997 was in fact given to respondent on 21.6.1997. In postal receipt Ex. C-3, the date is not clear, similarly on acknowledgement Ex. C-4 no date has been mentioned. The appellant in the court below did not examine any person from the post office to prove on which date Ex. C-3 was issued and on which date A.D. Ex. C-4 was returned. The appellant in the appeal also did not take any step for proving the date of issue of Ex. C-3 and of return of acknowledgement Ex. C-4. In the complaint, the date of serving of the notice on respondent has been mentioned as 21.7.1997 in para-5 of the complaint. In his statement as CW 1 appellant has stated that date of issuing of notice as 21.6.1997 was pleaded by him in the complaint, which is factually incorrect. It is not his case that in the complaint inadvertently due to typing mistake, wrong date has been mentioned. He as CW 1 has rather insisted that he has pleaded the date as 21.6.1997 in the complaint, he was confronted with the complaint. In the statement, under Section 313 Cr.P.C. no question was put to respondent that notice dated 20.6.1997 Ex. C-2 was got issued by the complainant on 21.6.1997. This was the most material question and no opportunity was given to respondent to explain whether notice was given on 21.6.1997 or 21.7.1997. The learned …5… Chief Judicial Magistrate has rightly appreciated the material on record. No case for interference is made out. 7. No other point was urged. 8. As a result of above discussion, the appeal fails and is accordingly dismissed. The bail bonds of respondent are discharged. April 28, 2009. ( Kuldip Singh ) (Hem) Judge.