In an application under Section 378(4) Cr.P.C. for leave to appeal an acquittal, the High Court dismissed the plea, holding the trial court's findings on evidence regarding cheque and cash payments were correct and no ground existed to interfere.
Application for leave to appeal stands dismissed as no ground is made out to interfere with the acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.A-186-MA of 2015 (O&M) Date of decision: December 13, 2016
Mukesh Sharma
...Applicant
Versus
Gaurav Goyal
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.B.K.Bagri, Advocate for the applicant.
Mr.S.N.Yadav, Advocate for the respondent.
INDERJIT SINGH, J.
Applicant-Mukesh Sharma has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Gaurav Goyal, challenging the impugned judgment dated 22.11.2013 passed by learned Judicial Magistrate Ist Class, Rewari, vide which the accused-respondent was acquitted.
It is mainly stated in the application that accompanying appeal is being filed which is likely to succeed on the grounds taken therein. It is further stated that the applicant would suffer an irreparable loss in case leave to appeal is not granted to him. It is, therefore, prayed that leave to appeal be granted.
Vineet Gulati 2016.12.23 15:38 I attest to the accuracy and As per the record, the complainant Mukesh Sharma filed a authenticity of this document Chandigarh
CRM No.A-186-MA of 2015 -2-
complaint against accused Gaurav Goyal under Section 138 read with Section 142 of the Negotiable Instruments Act. As per complainant's version, in the month of November 2011, accused has borrowed `1 lakh and the accused has assured the complainant that he will return the above-said amount before 10.12.2011. Accused issued cheque bearing No.106732 dated 12.12.2011, which on presentation for encashment, was returned back with the remarks 'insufficient funds'. Legal notice was served. When the amount was not paid, then the complaint was filed within time.
The accused examined DW-1 Ashok Goyal, DW-2 Vidhyanand and DW-3 Rohtash Singh, Clerk Sales Tax.
Learned JMIC, Rewari, after appreciating the evidence, acquitted the accused-respondent vide impugned judgment dated 22.11.2013.
Aggrieved from the above-said judgment, present appeal along with application for grant of leave to appeal has been filed.
Notice of motion was issued and learned counsel for the respondent appeared and contested the application.
I have heard learned counsel for the parties and have gone through the record.
In the cross-examination, the complainant has admitted that he has received two cheques of 15,000/- each from the accused on 16.02.2012 and 20.02.2012 but the complainant denied the fact that father of accused returned 20,000/- in cash to the complainant in lieu of the cheque amount. The complainant stated that those cheques were received for previous transactions but the complainant has failed to show that there was any Vineet Gulati 2016.12.23 15:38 I attest to the accuracy and authenticity of this documentprevious transaction between the parties. It is neither pleaded in the Chandigarh
CRM No.A-186-MA of 2015 -3-
complaint nor it was in the chief-examination of the complainant nor any other evidence has been produced to show the previous transaction between the parties.
The accused also examined his father as DW-1 Ashok Goyal, who deposed that his son borrowed 1 lakh from Mukesh Sharma. He further stated he borrowed 20,000/- from Vidhyanand to make payment to the complainant. DW-2 Vidhyanand was also examined, who supported this fact. DW-3 Rohtash, Clerk, Sales Tax Office, was also brought into the witness box to prove the balance sheet, where, as argued, this amount has been shown.
Learned Magistrate after discussing the law held that legal notice was given demanding 1 lakh whereas the accused has shown and proved the payment of 30,000/- by cheques and has led evidence to prove that `20,000/- has been paid in cash, as per law. If the complainant demands more than due amount from the accused in the legal notice, then that legal notice is illegal. The complainant cannot demand more amount than the amount which is due and payable to him by the accused.
Learned Magistrate after discussing the evidence in right perspective has acquitted the accused. Nothing has been pointed out as how the findings are perverse or against the evidence. Nothing has been pointed out as to which material evidence has been misread and which material evidence has not been considered by the Court below. In no way, the findings can be held as perverse or against the evidence.
In view of the above discussion, I find that the impugned judgment dated 22.11.2013 passed by learned JMIC, Rewari, is correct, as Vineet Gulati 2016.12.23 15:38 I attest to the accuracy andauthenticity of this documentper law and evidence and does not require any interference from this Court. Chandigarh
CRM No.A-186-MA of 2015
-4-
No ground is made out for grant of leave to appeal and therefore, the present
application stands dismissed.
December 13, 2016 (INDERJIT SINGH) Vgulati JUDGE Whether speaking/reasoned Yes Whether reportable No
Vineet Gulati 2016.12.23 15:38 I attest to the accuracy and authenticity of this document Chandigarh
3 issues framed by the court
Whether leave to appeal under Section 378(4) Cr.P.C. should be granted when the impugned acquittal judgment is correct in law and evidence.
Whether the learned Magistrate erred in holding substantive evidence regarding cash payment in view of the complainant's admitted receipt of cheques and lack of evidence regarding prior transactions.
Whether the finding that the legal notice demanding a higher amount than due constitutes an illegal demand requires interference from the Upper Tribunal.
2 provisions across 2 enactments
Mukesh Sharma
Gaurav Goyal
INDERJIT SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
