In a leave to appeal under S.B. Crml. L.A., the High Court upheld the trial court's acquittal. The court held that the appellant failed to prove the existence of a legally enforceable debt underlying the dishonoured cheque, thus no case for leave to appeal was made out.
Leave to appeal to file appeal against the acquittal is rejected with no case made out.
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.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Crml Leave To Appeal No. 325 / 2009
Ramdev S/o Shri Beer Ram @ Birbal Ram, By caste Oad, Resident of Oadon Ka Mohalla, Nearby Lalibari Park, Bikaner. ..-
Versus
Panna Lal-S/o Kishan Lal Nagal, Resident of B-29, Karni Nagar, PS Sadar, Bikaner. Through Shilpkar Sandesh Publication.
' "t' &.">< I< , .&? ;w .G. :~? 2 ;! , .t- -\ 9 ; 22 -yu ;? *I; ,$ ,(B% ' ?, 5 " 4 ?,l % ..% $7, For Appellant: ,,-. .-. +' : Mr. Vineet Jain along with M;E.-K.s. Lodha For Respondent : Mr. B.S. Sandhu
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HON'BLE MR. JUSTICE VIJAY BISHNOI
& '>.k "E . $' "." :-; ? .*;; 9 2 3 ...- ,? . + ,D ,;i -a,,<** @4 **03/05/2017** 7_ fir,. . ,- ?A . - ,, . ". * i* ", *s{:zF"" , . v , **_a> , ' i (,_ ' -7. .a%i " ; ' >\ " X This criminal led'$e; **$,,k+,,'%** " G* -~~~:.a~~,$eal,$ti$s*:een " f ''?.'..* **3,>y.k<3** **_p_** ~f;~;~" 4,- ; ' *&\ " , . ., .$* *: preferred by the appellant being aggrieyed Nieh **_C'_** the judgment dated 11.08.2009 **I..** **_i_** ' .* ',> passed by the dditionali, ~~ieffubicia Y.l d Magistrate No.3, Bikaner $& ,.@ {.J ji ;. @ 2. &, a,q*..> $$ : f ,\ (hereinafter referred to ?a$ 'the trial court') in Criminal Case h;* ,* .r2+. . >t'j;,< - 2 .r ;1 &: 5 ., i:' :% !,-!:,:*' q . . -" No.751/2005, wherebg'th-e -. ~ , - -2 **-t.rr+al-;@.$.i-t-:as** ,f acquitted the accused * **./+<'I,** **_3_** ':' $$&$/&>;>:* "-3; $ ," a \ P respondent for the idffi$#geszpyirnrsRahfeiT".i3~nder 3s FA% Section 138 of %:L<&TFy;T;&(+$gg.$$:- :2.. <,&&,?.., . .'.%2>%<** <?.$ **,** ;,;,. " x-A .c"w?:>: ..+, %. **j.4 A1.,* .r -1 -4: Negotiable Instrument Act (Lhereinafterl referred to as 'the NI ,< * P' ..r Act') . . t""
Brief facts of the case are that the appellant filed a complaint before the trial court with the allegation that on his asking the respondent got sold his agriculture land and out of the total consideration amount he kept Rs.88,000/- with him and assured him that the same money is a loan, which he will pay within some time. It is further alleged that after some time when the appellant
demanded money from the respondent, he gave him a cheque of Rs.88,000/- and when the appellant presented the said cheque for encashment in the concerned bank, the same was returned with the remarks that "fu.nd insufficientff. It is further alleged that t,hereafter, the appellant sent a notice to the respondent, which was received by him on 30.06.2015 but despite that he had not returned the loan amount and ultimately refused to repay the same.
#-..< ,.-e%*~~~$f~>w;, imF:$~~~t.;~~ - ~2' During the course-.:qC , kkG th'&:trrdl$r +. .) : :,L $ 'the..appellant got examined _n -> * -. ' ' \ qx: " ,; ' 9,.-z*;,,>&*,. e ' '8.. y'+ :,himself as prosecu~.&n,&ytness. -. ,,gj.7,: F ~T:-k~~ e4 $-. .,,s .- * - + a.nd .< ij i ; asb ,-- * ',&t ., , exhibited certain - * _25y<_ '.<&y'!xb., * :.ak ....a :;;p:,!J 6 ?y-., $ .$ 2' .a (, : 5;;: * ' <.<& & ,<l;;,,, ,;ti.,$$. ,;b?+!<;~*> $;,y I' .3% i...;.d documents. In defene,,$h.e~~e$.pp*% 5x-: >. , ,* ..+: > ., . / ~~~:e~~t~a!o' 3 ;. ?. . . : gave his evidence and $$," $e3$g),$;j4, 6 (, x,<,:g:. ;2:4? ' , " +<; <. t'""7,. got exhib.ited certain docum.c?iits,.; . " *, **i b.",** = =, The trial court, aft& 1' pona;eaiingi over the evidence available $$i **_G2{;_ g;j8** . , $"i !: _j_ **j** : . , j/*'~ j _fit_ 'tl >; 4'' ?\ on record, acquitted the accsed respondent _i_ Ti'* for the offence .- punishable under ~ec$on 138q3fNI :Act, Hence, this criminal leave <it&& ft7aJ&tt+%&..-** !, . <. +"; ' ? % $.ii/3bkz $..kt #g drt\q* %j,, !+: ***<i** ;"$ ;?I hi? i .,,r:: :....-.. 1.) /! **_;a_* *<*r to appeal.. ++A. - ..-"" ?+;--dep . ~%.. -~2~~~~$$;dFdegges&+i+9,~~l $ dV;h ;;, %lS_q i,2 , :. kb +-.+-. ; *&m&&&:<$;;R* ._ .*--.. .. -" * ++, ?*>
Learned counsel ---.f~.r:.~ tKe- -ap.p,el,l.aGtb has argued that the , 3AbiJ@~. ,' ?$ T-' appellant has sufficiently proved before the 'trial court that the respondent gave him a cheque of Rs.88,000/against a legally enforceable debt, however, the same was presented by the a,ppella.nt in the concerned bank, but when the, same was not realised then the appellant sent a notice under Section 138 of NI Act to the respondent, .which was duly served upon him but despite that he did not pay the money. It is contended that the
trial court has not appreciated the evidence produced by the appellant in support of his complaint in right perspective and illegally held that the appellant has failed to 'prove that the respondent .gave him a cheque of Rs.88,000[- against a legally enforceable debt. It is contended that from the evidence available on record, it is clearly proved that the respondent is guilty of commission of offence punishableunder Section138 of NI Act and 4 pk "ih. EQ 4- JL;pp>, the finding recorde&byJth&naI &+ _k$-_ cdu.t~~w,hI.ebqquitting the accused **_*,,ws_* C"+ $" 0 d;3*\k respondent aEe contra,ry to the evidence availabl.e;,oq record and, .XI. ",'. t 7 .& .-.a ,A ;,Y thereforetpthe same are perverse. $% ?" Learned couns$~~~ for the 4-32 c ,\2:2:$1 iJFJ Q -<%$$ % appellant.has, therefore, prayed that it is a fit 'case wherein leave Ta be granted to the appellant~~~%sl.e.2 -7 appeal against the impugned **
d iudament. d
that the appellant has the cheque in questio respondent against a legally enforceable e trial I court has rightly acquitted the accus ' mpugned judgment. judgment. Learned counsel fo Iso invited attention towards the defenc e e the trial court and --= *a7$&3 ,~4a v .. ; submitted that from thehdocuments produced by the respondent in defence, it i.s clear that the cheque in question handed over to the appellant by the respondent was not against a legally enforceable debt and the appellant has misused the said cheque given to him for the purpose of purchasing his agriculture land.
Heard learned counsel for the parties and carefully scrutinized the record.
In the complaint the appellant has came out with a case. that
on his asking the respondent got so'ld his agriculture land and out
of the total sale consideration, he kept Rs.88,000/- with him as
loan and assured the appellant that he will repay the same. It is
further alleged that when the appellant asked for repaying the
loan to the respondent, he handed over a cheque of Rs.88,000/-
to him, which was not released and returned with a-remark that
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"fund insufficientff ;,.. ,ipaLr A-i , ,$ j;
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The appel.st % {+ also filed an affidavit in ehd6iiee -before the
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trial court~~~hile stating the same facts as stated in the co,mplaint,
however, during the course of cross-examination, he stated that
4:;f:yf>Fgk --;<br>he entered into an agreerne;nJ~~w21't~..the ,". respondent for selling his
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agriculture land, th6ggR, in the Complaint he stated that the
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respondent got sold fi~~@,ntu(t%l'&lah~d~~o &$ aj$+,f+g:sr2:A p8i6 .$ L: 5h. . . Y4., ? somebody else. In the
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cross-examination, thy jpi~~ll;;Q;i,d;qpz~Q,; the execution of any
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,.p\ $$$ y, , ? ,;-z%$j,3j$ ,&; &$$ &$$ <%# -! -! A,>? ,% ,,
power of attorney (xhibibDff2) , $1 'by'hiNdnd I; 1: rr his family members in
i: 94 ,t;:bi 6.1' $4 !; /
favour of one Mustak, thdu:&,$$dfli$ed ,. . Pp .k:c+ his thumb impression on
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power of attorney (~~hibi-bi)-:-and,, , P -GP.,',.. also admitted the thumb
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impressions of his b'rb.thek. > )ij.:i--. ,T:-$:~:.+," a : @-i $Ti; 31:st.e.. ?g -+2‘ The appellant further
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admitted that Mustak sb'l&--th& agiiculture lands of his and his
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family members thro;g'hf reg'iste:red-t s8zl&-deed (Exhibit-D/3). At
the same time, the appellant also admitted the registered notice
(Exhib'it-D/4) sent by his advocate, however, stated that he don't
know why his advocate sent notice to the respondent. During the
-
cross-examination, the appellant further admitted 'that. he sold his
ag,riculture land to the respondent but at the same time, he also
stated that the respondent got sold his land to somebody else.
0 -> ><,$ % $'* y, ,;-z%$j,3j$ ,&; &$$ &$$ <%# -! -! _A,>?_ ,% $1 'by'hiNdnd I; 1: i: 94 ,t;:bi 6.1' $4 . Pp .k:c+ : $"$'i $ @ ; @ ; ; 0. %?<;:,.) 3 (hibi~-bi)-:-and,, , P -GP.,',.. ?i +:i3!:,-/ i i , ~ ~ ? %%-. %%-. i.: **,T:-$~~*::.+,"~* a : ~@-i $Ti; ?g .a$- i; i; -. ~~ - <;bmvu. . &f.,;
The respondent has came out with a defecne that, he agreed "- to purchase the lands of appellant and his brother and sister ,.through a'greement to sale and in lieu of that he'gave him some money in-cash and remaining money was given to him through cheque in question, h'owgver, the appellant and his family members in contravention of the terms of agreement to sale executed a power of attorney in favour of one Mustak, who sold TB'r :h&i T*- Y' P_bl. the said agricultureJq'n@ toa2S-aawtnAa.ndj wthj@$F-$)r e spdondent asked *?\ '$A - Gg Gh $'h fey; for returning?theTmoney .4‘cL $!+ paid by him to thee%ap:pellant and his *4s:ke 2:hz, j@ qJi ,& family mvemflers in return the appellant filed this fdlsecpmpaint ,+$q./? <+.. % a j/--_ ""3$ :+, against .hm. In defence, the respondent got exhibited2skveral documents such as cuted by the appel lant rJ5-#2$+4f2T >&> . and his family mem " ", **."4J$j.,!&PPiii@** dr :i$o\h/e,~pf attorney, executed .- &t.. "ij 4 .. c:<d **.i_** ?:: </,,>: $& ; _F.,,_ )... $ ;>-. -3 ,J&$- ;,%{,; >'f;j: ,+7;:j$@y;p by the appellant an y>.~~e@Qes:ir.p~favour $EX&d .u;z i,2r . of one Mustak; * <.-,' h&dg&.$f;##i -, _?d.,_ -- sale-deed, executed b others and the nc sent by the appella --+ails spdnfirkfihroug .. I .& a-2 I s h his advocate. 4 "a; 4 li: *#) ,. The trial co &erygko@r the evidence produced by the appellant the respondent in def 'ppellant has failed to prove that the n to him by the ? ==------s;["~~~~m~~~-$e-~~--< ;$>j ;(..-- .,; jt < yj; .v- %..$ .."j w.,: j %;,, -$,;--.. .; 7-? 7 respondent against any\l"ega,l:ly ;$dforceable; debt and the evidence produced by the respondent are more trustworthy.
After carefully scrutinizing the record and particularly the evidence of the appellan't as well as the respondent, I have no hesitation in holding that the appellant has miserably failed to prove before the trial court that the cheque in question was given to him by the respondent was against any legally enforceable
debt, hence, the trial court has not commitfed any illegality in passing the impugned judgment while acquitting the accused respondent for the offence punishable under Section138 of the Negotiable Instrument Act.
In view of the above discussions, no case for grant of I'eave to the appellant to file appeal against the impugned judgment is made out.
*MJ' ,/j$ (VIJAY DSW'hl0I')J. "%;+<a X
2 issues framed by the court
Whether the appellant sufficiently proved that the cheque in question was given against a legally enforceable debt.
Whether the trial court committed any illegality in acquitting the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act.
1 provisions across 1 enactments
Ramdev S/o Shri Beer Ram
Panna Lal
VIJAY BISHNOI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
