Jagdish Kumar Bajaj v. State & Anr

TALWANT SINGH, J SEPTEMBER 07, 2022/mr

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 07.09.2022 + CRL.L. P.587/2016 JAGDISH KUMAR BAJAJ ..... Petitioner Through: Ms. Naina Bajaj, Advocate. versus STATE & ANR. ..... Respondents Through: Mr. N.S. Bajwa, APP for State. Mr. J S Malik, Advocate for R-2. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. The petitioner has filed this petition under Section 378 Cr.P.C. praying for grant of leave to appeal against the judgment and order dated 01.09.2016 passed by the learned Metropolitan Magistrate (the MM), South Saket District Court in Complaint Case No.1663/2015. 2. By the said order the the respondent No. 2 has been acquitted in a complaint under Section 138 Negotiable Instrument Act (for short "NIA"). 3. In brief the case of the petitioner is that he had filed a complaint regarding the dishonour of the cheque bearing No. 308067 dated 30.10.2011 for an amount of Rs.2 lakhs. This cheque was received from the respondent No. 2 as return of the loan given on 30.10.2011 by the complainant to the accused. The accsued is stated to be a government teacher at Ambala who approached the present petitioner/complainant through one Sh. Ajay Kumar Arora on or around 29.10.2011 for an urgent need of money amounting to Rs.2 lakhs. On recommendations of Sh. Ajay Kumar Arora, petitioner/complainant advanced the said loan for a month in cash after widhrawing the same from his bank account and this amount was paid in the presence of Sh. Ajay Kumar Arora at Delhi. The cheque for the same date was handed over by respondent No. 2 to the petitioner. The respondent No. 2 promised to pay back the amount within 30 days, otherwise the said cheque could be deposited. Since, no money was paid by respondent No. 2 after the expiry of 30 days, so the petitioner/complainant deposited the cheque in his bank in the 4th week of January, 2012 as per the assurance given by respondent No. 2 to honor the same but the cheque was dishonored with remarks on the bank memo "insufficient funds". 3.1. A legal notice was served and thereafter the present complaint was filed. The complaint was initially filed in Delhi but in view of the judgment of Hon'ble Supreme Court, the case was transferred to Ambala, where the accused was admitted on bail and thereafter notice under Section 251 Cr.P.C. was framed. Both the parties also tried mediation but the same was not successful. Witnesses were examined, statement of the accused/respondent No. 2 was recorded. The case was transferred back to Delhi, in view of the amendment in the NI Act and complaint was dismissed vide impugned order. 3.2. The order has been challenged by filing the present petition for special leave to file an appeal. Alongwith the present application, the proposed appeal has also been filed on record. 4. Notice was issued. Reply has been filed by the accused/respondent No. 2. 4.1. Sum and substance of his defence is that the cheque in question was given to Sh. Ajay Kumar Arora, who is a friend of present petitioner as security regarding a property deal. The said property deal did not mature and respondent No. 2 returned the amount of Rs.3.5 lakhs through cash and cheques. The present cheque was given as security which was to be returned to respondent No. 2 on full payment but the same was not returned. It has been further mentioned that there is no written proof on record like receipt or promisory note evidencing that the loan of Rs.2 lakhs was given by the petitioner to respondent No. 2. 5. Rejoinder has been filed on behalf of the petitioner/complainant reiterating the facts in the present application. It has been submitted that recently another cheque was also found with Sh.Anil Kumar. The petitioner/complainant has no concern with any property dealing and the cheque in question was handed over by respondent No. 2 to the petitioner against his legal debt. 5.1. Initial theory of the respondent was that there were two cheques given to Sh. Ajay Kumar Arora, out of which one che