Dismissed

P.K. Agrawal v. Sitaram Gupta

Chhattisgarh HC22 Aug 2024CRMP/1168/2020

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed a CrMP seeking special leave to appeal an acquittal in a cheque bounce case. The court held that the appeal was not maintainable as the lower court correctly applied Section 258 CrPC rather than Section 372 CrPC, and the delayed compromise did not warrant quashing.

What did the court decide?

The Criminal Miscellaneous Petition seeking special leave to appeal was rejected, dismissed and the CrMP stands disposed of.

P.K. Agrawal Vs Sitaram Gupta — Cheque Dishonour | Chhattisgarh HC (2024)

2024:CGHC:32346

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1168 of 2020

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P.K. Agrawal S/o Late Sagarmal Agrawal, Aged About 54 Years Occupation - Saw Mill Owner and Forest Contractor, R/o Jai Stambh Chowk, Sadar Road, Ambikapur District - Surguja Chhattisgarh.

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... Petitioner

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versus

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Sitaram Gupta S/o Raghunath Sao, Proprietor Ruchi Furniture Mart, Church Road, Kedarpur, Ambikapur, Post, Police Station and Tahsil - Ambikapur District - Surguja Chhattisgarh.

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... Respondent

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For Petitioner : Mr. Divyanand Patel, Advocate appears on behalf of Mr. Rishikant Mahobia, Advocate

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Hon’ble Shri Justice Arvind Kumar Verma Order on Board

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23/08/2024

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Case is listed on default. The default as pointed out by the Registry stands dropped.

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With the consent of counsel for the petitioner, matter is heard finally.

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The present CrMP has been preferred by the petitioner under Section 378(4) of the Code of Criminal Procedure, 1973 for grant of special leave to appeal.

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Learned counsel for the petitioner has sought special leave to appeal against the impugned judgment of acquittal dated 26.08.2019 passed by the Court of 7^th Additional Sessions Judge, Ambikapur, District Surguja (C.G.) in Criminal Appeal No.81/2018, whereby the respondent has been acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 holding that the appeal submitted by the Appellant/Complainant is rejected as not maintainable.

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Case of prosecution in brief is that the respondent has purchased wood worth Rs. 8,200/- from the appellant/complainant for his furniture shop on 15.12.2010, for the payment of which a check was drawn on his Bank of Baroda, Branch Ambikapur, A/c No.13336020000, Cheque No.121189-000012000, amount of Rs. 8,200/- was given on 15.12.2010, which was deposited by the Appellant/Complainant in his IDBI Bank Limited, Branch Ambikapur, A/c No.700104000020369 on 04.04.2011, which was returned as dishonored by Bank of Baroda, Branch Ambikapur due to “insufficient funds” in the account as per return memo dated 05.04.2011. Information of which was given to the respondent/accused and cash was given. Requested for payment, on which the respondent/accused kept giving assurance, but did not make the payment. Then, the Appellant/Complainant through his counsel on 04.05.2011, sent a legal notice. Despite this, the respondent/accused

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neither sent the reply nor paid the said amount. Due to which the Appellant/Complainant submitted a complaint under Section 138 of the Negotiable Instruments Act on 04.06.2011.

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Learned counsel for the petitioner contended that the judgment/order of acquittal passed by the learned trial Judge is illegal, improper and incorrect and is liable to be set aside. He further contended that the learned trial Court has erred in law in acquitting the accused/respondent on the ground that the matter has been compromised. The learned trial Court ought to have considered this fact that the application for compromise has been filed in a belated stage after 7 years, that too, in a stage where the evidence of complaint has already been recorded and there is likelihood of conviction of the respondent. He further contended that the learned trial Court ought to have considered that the provisions under Section 258 of the Cr.P.C. is not applicable in the case. The trial Court has wrongly held that appeal is not maintainable where as it was maintainable, therefore, it is prayed that acquittal order dated 26.08.2019 may be set- aside/quashed and petition be converted to acquittal appeal.

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I have heard learned counsel for the petitioner and perused judgment passed by the learned trial Court as well as other material available on record with utmost circumspection.

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I have found that as per version of the petitioner that parties are settled their dispute with regard to cheque bounce case under Section 138 of

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the NI Act amicably and on that ground, learned trial Court has acquitted the accused/respondent under Section 138 of NI Act.

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Considering the facts and circumstances of the case, learned 7^th Additional Sessions Judge, Ambikapur, District Surguja (C.G.), while dismissing the appeal of the appellant/complainant observed in its judgment that if there is acquitted by the Court under Section 138 NI Act then appeal will be preferred before the High Court. If the complaint case is dismissed in absence of complainant’s Counsel then result is acquittal of the accused and only such acquittal, an appeal has to be made before the Hon’ble High Court.

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In the light of the above legal provisions and precedents, in the present case, the learned trial court has declared the accused/respondent acquitted while taking action under Section 258 CrPC through the impugned order passed under Section 138 Negotiable Instruments Act in the complaint case. In such a case, the appeal of the said order should not be filed under the proviso of Section 372 of the Indian Penal Code, but under Section 378 (4) of the Indian Penal Code, after obtaining permission from the Hon’ble High Court, it should be filed before the Hon’ble High Court. Even in the present case, the case of the appellant/complainant does not come under the proviso of Section 372 of the Code of Criminal Procedure. In such a situation, the appeal filed is not prevalent in this Court.

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Further, considering the facts of this case, submission made by the learned counsel for the petitioner, I have found that as per version of

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the learned counsel for the petitioner that parties are settled their dispute with regard to cheque bounce case under Section 138 of the Negotiable Instruments Act. Learned counsel contended that the learned trial Court ought to have considered this fact that the application for compromise has been filed in a belated stage after 7 years, that too, in a stage where the evidence of complaint has already been recorded and there is likelihood of conviction of the respondent when case under Section 138 NI Act has been dismissed on the basis of compromise.

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12.Taking into consideration the findings recorded by the revisional Court, I do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal.

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Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for special leave to appeal being totally devoid of merits the same is rejected.

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Accordingly, the instant Cr.MP stands dismissed & disposed of.

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Sd/- (Arvind Kumar Verma) Judge

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Vasant

P.K. Agrawal v. Sitaram Gupta

Case brief

What is this about?

What did the court decide?

P.K. Agrawal v. Sitaram Gupta

Case brief

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