The High Court dismissed the criminal leave to appeal filed by the appellant against the trial court's acquittal of the respondent for cheque dishonour. The Court found no illegality in the acquittal based on the trial court's findings regarding repayment evidence.
The leave to appeal is dismissed and the acquittal of the respondent is upheld.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Crml Leave To Appeal No. 185 / 2016
Ashok Kumar S/o Shri Mangatramji, Aged 54 years, By caste Sindhi, Resident of First C Road, House No.401, Sardarpura, Jodhpur (Raj.)
----Appellant
Versus
----Respondents
For Appellant : Mr. D.C. Bissa
For Respondent No.1 : Mr. J.P. Bhardwaj, Public Prosecutor
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order
26/04/2017
This criminal leave to appeal has been filed by the appellant being aggrieved with the judgment dated 21.05.2016 passed by the Additional Chief Metropolitan Magistrate No.6, Jodhpur Metropolitan (hereinafter referred to as ‘the trial court’), whereby the trial court has acquitted the accused respondent No.2 for the offence punishable under Section 138 of Negotiable Instrument Act.
Brief facts of the case are that the appellant filed a complaint before the trial court while alleging that he advanced a loan of Rs.50,000/- to the respondent No.2 for the purpose of running her business and in lieu of that she gave him a cheque of Rs.50,000/-. It is alleged that when the appellant produced the said cheque for
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encashment in the concerned bank, the same was returned with the remark that the account closed. It is alleged by the appellant that after dishonor of the cheque in question, he issued a notice to the respondent No.2 through advocate on 17.06.2009 vide registered post as well as through UPC, however, her family members refused to receive the registered notice, whereas the UPC notice was served upon her. It is further alleged that neither any reply to the said notice was given nor any payment was made by the respondent No.2, hence, this complaint.
The trial court has took cognizance against the respondent No.2 for the offence punishable under Section 138 of Negotiable Instrument Act and framed charges for the aforesaid offence.
In support of the complaint, the appellant examined himself as PW-1 and also got five documents exhibited. The statements of accused respondent No.2 were recorded under Section 313 Cr.P.C., the statements of one DW-1 Arvind Mathur were also recorded and got five documents exhibited in defence.
The trial court, after hearing learned counsel for the parties, has given a specific finding that the accused respondent No.2 and her husband have given many cheques to the appellant from time to time in lieu of loan advanced to them. The trial court has taken into consideration the Exhibit-D/4 receipt executed by the appellant for receiving Rs.3,05,000/- from the husband of the respondent No.2 and Exhibit-D/5 agreement entered into between the respondent No.2, her husband and the appellant in the presence of two witnesses viz. DW-1 Arvind Mathur and Vikram Kumar Ladwani, who happened to be son of the appellant. The
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trial court has held that the appellant has admitted the execution of Exhibit-D/4, receipt of receiving Rs.3,05,000/- from husband of respondent No.2, however, has denied the execution of ExhibitD/5, agreement entered into between the accused respondent No.2, her husband and the appellant. The trial court has observed that one of the witness of the said agreement DW-1 Arvind Mathur has verified the execution of the said agreement. The trial court has also observed that another witness of the said agreement was the son of the appellant, however, the appellant has not produced him in evidence to prove that no such agreement was executed between the parties. The trial court has also observed that though, the appellant has denied that he has purchased the stamp paper, on which the agreement Exhibit-D/5 was executed, but he has failed to produce the stamp vender, who was sold the said stamp paper to him. The trial court has, therefore, observed that though, the cheque in question was given to the appellant by the accused respondent No.2 in lieu of loan advanced by him, but the loan amount was paid to the appellant pursuant to the Exhibit-D/4 and Exhibit-D/5. The trial court has, therefore, held that once the loan amount has been paid to the appellant during the pendency of the trial, the accused respondent No.2 is liable to be acquitted from the offence punishable under Section 138 of Negotiable Instrument Act.
After carefully scrutinizing the record of the trial court, certified copy of which is produced by learned counsel for the appellant before this Court today itself, I am of the opinion that the trial court has not committed any illegality in acquitting the
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accused respondent No.2 for the offence punishable under Section
138 of the Negotiable Instrument Act.
Hence, no case for interference is made out.
Consequently, this leave to appeal is dismissed.
(VIJAY BISHNOI)J.
Abhishek Kumar
S.No.30
1 issue framed by the court
Whether the High Court should interfere with the trial court's acquittal of the accused for the offence punishable under Section 138 of the Negotiable Instrument Act.
2 provisions across 2 enactments
Ashok Kumar
State of Rajasthan
Smt. Pratibha Solanki
VIJAY BISHNOI
As recorded by the court registry
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