- (1.)THIS appeal is preferred by the appellant-complainant impugning the order dated 24. 07. 1997 passed by the learned Metropolitan Magistrate, Delhi in complaint Case No. 5/1 whereby its complaint under Section 138 of the Negotiable instruments Act, 1881 (hereinafter referred to as the "act") filed against the respondent herein was dismissed.
(2.)RELEVANT facts leading to the acquittal of the respondent are that a complaint was filed by the appellant under Section 138 of the Act against the respondent alleging that respondent Sada Ram represented himself to be proprietor of M/s Shiv Trading Company and issued a cheque bearing No. 783652 (Ex. CW-1/c) dated 15. 11. 90 for a sum of Rs. 2,75,000/- drawn on Punjab National bank, Naya Bazar in favour of complainant. The complainant firm deposited the said cheque with State Bank of Bikaner and Jaipur, Khari Bowoli, Delhi but the same was dishonored vide memorandum by the respondent"s bank and returned back dated 1. 12. 90 with the remarks "account closed". Thereafter the complainant issued a legal notice of demand dated 10/11-12-90 (Ex. CW-1/e) to the respondent-accused by registered post as well as under certificate of posting (UPC ). The notice sent by registered post came back undelivered and one copy of the notice was affixed at residence of the respondent on 15. 12. 90 by complainant"s manager CW-2, Ashok Kumar Bansal. On failure of the respondent-accused to pay the amount of the dishonored cheque within the prescribed time of fifteen days the complainant filed the criminal complaint against the respondent, which however came to be rejected by the trial Court.
(3.)THE complainant firm in order to prove the accusations of the respondent-accused had examined five witnesses. The respondent, on the other hand, in his defence denied being the proprietor of M/s Shiv Trading Company and having issued the cheque in question. He further denied having received any notice of demand or any affixation of the said notice on the property bearing no. 2632 2nd Floor, Gali Laltain Wali. He also denied having any connection with the addresses mentioned at S. Nos. 2 and 3 in the legal notice (Ex. CW-1/e ). In his defence the respondent examined himself as his own witness wherein he maintained on oath that neither he had signed the cheque (Ex. CW-1/c) nor he had any concern with the proprietorship of M/s Shiv Trading Company.