The case is taken up in the revised list.
Learned counsel for the appellant is present.
None is present on behalf of respondent.
Heard the arguments upon the Leave to Appeal application and perused the record. The brief facts are as follows :-
The respondent is a proprietor ? M/s Navin Refrigeration and respondent / accused demanded some money from the complainant for expending his business and later on he would be made partner in the business. On that pretext Rs.2,50,000/- were given by the complainant. Two cheques dated 17.02.2016 and another dated 23.10.2016 were issued by the accused and the same were dishonored by the Bank, in spite of notices to this regard no payments were made. Learned trial court after taking evidence and hearing the parties found the allegations against the accused of respondent and thereby convicted the accused from the charges under Section 138 of Negotiable Instrument Act for two years simple imprisonment and Rs.4 lacs as fine.
Aggrieved by that accused-respondent preferred an appeal before the Sessions Court and Additional Sessions Judge, Court No. 1, Varanasi on findings that money was given for extending the business of the accused and two predated cheques were given by the accused and in its, it was found by the Court that provisions of Section 138 of Negotiable Instrument Act is not applicable and thereby acquitted the accused-appellant.
It is submitted by the learned counsel for the appellant that the finding of appellate court is perverse and against the law, when taking of money is admitted and cheques in this regard were issued and they were dishonored then provisions of Section 138 of Negotiable Instrument is applicable and the observation made by the appellate court is against the law.
The substantial question of law involved as to whether the money given in the circumstances is not attracting the provisions of Section 138 of Negotiable Instrument Act and consequently the Leave to Appeal is allowed.
Office is directed to allot a regular number to the appeal.
Respondent is directed to file personal bond and two local sureties each of the like amount before the trial court concerned, for the appearance before this Court on the date fixed as well as on future dates.
Respondent will file the bonds before the trial court within 20 days from today. In case the respondent appears or brought before the Court of Chief Judicial Magistrate concerned, then he will be released, after he furnishes the bonds as required above with an undertaking to appear before this Court on the date fixed either personally or through his counsel.
Compliance report will be sent by the court concerned within a month.
The original lower court record has already been received. Office is directed to prepare the paper-book as per rules.
List immediately thereafter.
Order Date :- 13.07.2016.
Vinod.