Allowed

Kailash Kumar Agrawal v. Vinod Kumar Soni

Chhattisgarh HC24 Nov 2023ACQA/194/2012

Case brief

AI extract

What is this about?

In an acquittal appeal under Section 378(4) CrPC, the High Court of Chhattisgarh allowed the appeal and set aside the trial court's acquittal in a cheque dishonour case. The court held the trial court misapplied warrant case procedures for a summons case, denying the complainant adequate evidence opportunities, and remanded the matter for fresh hearing.

What did the court decide?

Judgment of acquittal set aside; matter remanded to the trial court to be decided expeditiously after following proper summons case procedures.

Kailash Kumar Agrawal Vs Vinod Kumar Soni — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Acquittal Appeal No. 194 of 2012

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Kailash Kumar Agrawal S/o late Shri Ayodhya Prasad Agrawal, aged about 50 years, R/o Punjab National Bank Gali, SECL Road, Transport Nagar, Korba, Tahsil & District Korba (CG)

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---- Appellant/Complainant

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Versus

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Vinod Kumkar Soni R/o Shree Jewelers, Power House Road, Korba, Tahsil & District Korba (CG)

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---- Respondent /Accused

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For Appellant : Shri Rajendra Tripathi, Advocate For Respondent : None

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Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgement On Board

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24.11.2023

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1. In this appeal filed under Section-378(4) of the Code of Criminal Procedure, 1973, the judgment passed by the Chief Judicial Magistrate, Korba, District Korba, CG on 29.08.2008 in Complaint Case No.274/2001 has been challenged whereby the respondent/accused Vinod Kumar Soni was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 due to lack of evidence. Hereinafter referred to as 'the judgment of acquittal in question'.

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2. The complaint case was that both the parties were familiar with each other. The respondent/accused Vinod Kumar Soni had taken a loan of Rs 1,00,000/- (one lakh rupees) from appellant/complainant Kailash Kumar Agrawal. For payment of the

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said amount, Vinod Kumar Soni gave a check bearing number0024596 dated-18/12/2000 worth Rs. 1,00,000/- (one lakh rupees) to the complainant which the complainant deposited in State Bank of Indore, Branch - Korba, which was returned without payment due to lack of sufÏcient funds in the concerned account. Information about which was given to the complainant on 06/01/2001. Then he sent a legal notice dated 10/01/2001 demanding the said amount. The accused did not pay the check amount within 15 days from the date of receiving of information. Then a complaint was made by the complainant in the court on 14/02/2001.

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3. In the trial court, on 22/09/2004, the particulars of offence were read out and explained to the accused, on which he denied the same. Thereafter the case was fixed for complainant's evidence and due to lack of evidence, the judgment of acquittal was passed on 29/08/2008.

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4. Learned counsel for appellant/complainant argues that the complainant was not given sufÏcient opportunity for evidence by the trial Court. By adopting a procedure contrary to law in a summons case, the trial Court kept fixing the case for pre-charge evidence and post-charge evidence. Whereas the process of precharge evidence or post-charge evidence is adopted in warrant cases. This has been a case of check dishonor, a summons case. The complainant appeared for evidence but the trial Court did not take/record his evidence without any reason and ultimately his opportunity for evidence was ended. If complainant’s evidence was not available, there was no need to examine the accused under Section 313 of the Code of Criminal Procedure. Whereas in

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this case, the accused was examined by the trial Court and subsequently vide the judgment of acquittal in question, the accused was acquitted due to lack of evidence, which is completely contrary to law. Therefore, the case should be remanded to the trial court for hearing afresh after giving full opportunity of hearing and the judgment of acquittal in question should be set aside.

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5. No one was present on behalf of the respondent/accused during argument.

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6. Heard the counsel for appellant and Perused the record.

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7. From perusal of the record, it becomes clear that the particulars of offence under Section 138 Negotiable Instruments Act, 1881 was constituted on 22/09/2004. The maximum punishment for the offence under Section 138 Negotiable Instruments Act, 1881 is 2 years. Hence, the process of trial should be like a summons case. It is noteworthy that before formation of the particulars of offence, the trial Court after registration of the case, kept fixing the case for pre-charge evidence, which should not have been adopted in summons case. Similarly, after the particulars of offence, the case was first fixed for complainant's evidence. After the complainant's presence on 20/06/2006, his evidence was not taken. Later, the case was again diverted from the legal process and was fixed for post-charge evidence. On account of the absence of complainant on 27/08/2008, his opportunity for evidence was ended. The case was fixed for examination of the accused on 29/08/2008 under section 313 of the Code of Criminal Procedure and on the same day, the judgment of acquittal in question was passed and he was

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acquitted.

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8. A perusal of the entire record of the trial court reveals that in the summons case also, like the warrant case, the matter was fixed for pre-charge and post-charge evidence, due to which a situation of confusion arose. After the particulars of offence, if there was lack of complainant evidence, there was no need to examine the accused under Section 313 of the Code of Criminal Procedure, but, examining him by the Court again created confusion. Subsequently, the judgment of acquittal was passed on the ground that there was no evidence presented after the charge. Thus, the procedure adopted by the trial Court was not in accordance with law. For this reason, it is found necessary in the interest of justice to give proper and sufÏcient opportunity to the complainant for evidence.

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9. Thus, this appeal is allowed. The judgment of acquittal in question of the trial Court is set aside. The matter is sent back to the trial Court and it is directed that after the formation of the particulars of offence, all the procedures as per law, be followed and the matter be decided expeditiously by giving sufÏcient opportunity of hearing to both the parties. The present party is directed to remain present before the trial court on 02/01/2024 at 11.00 a.m.

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10. The records of the trial court along with the copy of this order should be sent back as soon as possible.

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Sd/(Sanjay Kumar Jaiswal) Judge

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Khatai

Kailash Kumar Agrawal v. Vinod Kumar Soni

Case brief

What is this about?

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Kailash Kumar Agrawal v. Vinod Kumar Soni

Case brief

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