Full Judgment
CRM-A-662-MA of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-662-MA of 2009 (O&M) Date of Decision:
16. 07.2013 Aman Dhingra .....Petitioner Versus Niranjan Dass Gupta .....Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH Present: - Mr.Rahul Vats, Advocate, for the petitioner.
Mr.Sandeep Kotla, Advocate, for the respondent.
***** PARAMJEET SINGH, J.
The instant application has been filed under Section 378(4) Cr.P.C.for grant of leave to appeal against the impugned judgment dated 4.8.2009 passed by the learned Chief Judicial Magistrate, Rohtak, whereby respondent has been acquitted of the charge framed against him under Section 138 of the Negotiable Instruments Act.
Brief facts of the case are that respondent in discharge of his liability issued a cheque bearing No.502709 dated 3.3.2005 for ` 2,00,000/- drawn on State Bank of Patiala, Mini Secretariat, Rohtak, from his account No.26481.
It was alleged in the complaint that upon presentment cheque was dishonoured with the remarks “Funds Insufficient”.
vide memo dated 3.5.2005.
Thereafter legal notice dated 14.5.2002 was issued to the accused calling upon him to make the payment within 15 days from the date of receipt of the said notice but the notice was returned with the report of postman that the accused was not met despite repeated efforts and had gone out of station.
Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -2- On filing of complaint in preliminary evidence, complainant examined himself as PW1 and tendered his affidavit Ex.C1 into evidence.
He also tendered document Ex.C2 cheque, Ex.C3 bank memo, Ex.C4 legal notice, Ex.C5 postal receipt and Ex.C6 envelope with report of postman.
The preliminary evidence was closed vide order dated 4.6.2005 and accused/respondent was ordered to be summoned to face trial under Section 138 of the Negotiable Instrument Act.
On 5.10.2005 accused/respondent appeared and was admitted to bail.
Notice of accusation under Section 138 N.I.Act was served upon the accused vide order dated 19.10.2005 to which he pleaded not guilty and claimed trial.
In order to prove its case, complainant examined himself as PW1, P.S.Aneja, Manager, UTI Bank as PW2, Som Nath from the office of State Bank of Patiala, Rohtak, as PW3 and R.S.Punia, Manager, SBP, Hassangarh as PW4.
Thereafter the evidence of complainant was closed on 16.12.2006.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C.All the incriminating circumstances were put to the accused.
He denied the same and pleaded innocence and false implication.
However, no evidence in defence was led.
The learned trial court, after appreciating evidence on record acquitted the accused/respondent of the charge framed against him.
Hence, this application for grant of leave to appeal.
I have heard learned counsel for the parties and gone through the impugned judgment also.
The learned trial Court, after appreciating the evidence on Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -3- record, observed as under:- “In the present case, the accused was served with notice of accusation to the effect that the cheque Ex.C-2 dated 3.3.2005 bearing No.502709 for a sum of Rs.2,00,000/- which was drawn by accused on State Bank of Patiala in favour of complainant was dishonoured due to insufficient funds.
However, from evidence which has come on record, the aforesaid notice of accusation served upon the accused has not been established beyond reasonable doubt for the following reasons: - (i) In the present case, there is on record the testimony of PW3 Som Nath who was witness from State Bank of Patiala he deposed tat on 3.5.2005 in the morning a sum of Rs.5,56,99.70 was in the account of accused and cheque in question for sum of Rs.2,00,000/- was passed for payment by the other Incharge.
He produced the statement of account Ex.P8 of the bank account of the accused and stated that when the cheque in question came for clearance an amount of Rs.2,00,000/- was debited from the account of accused.
From perusal of Ex.C8, it is evident that against the cheque in question payment of Rs.2,00,000/- took place from account of accused as the said amount was debited from the account of accused.
PW4 R.S.Punia in his evidence deposed that cheque in question Ex.C2 came in the branch for clearance at 12.30 p.m.and on the said day at about 10.00 a.m.a sum of Rs.5,56,599.70 ps.
was available and at 10.30 a.m.Rs.5,35,000/- were withdrawn by accused and due to the computer fault the said amount could not be debited from the account of accused but the said Singh Ravinder witness stated that he was not having any record or 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -4- proof to prima facie show or establish that accused had withdrawn an amount of Rs.5,35,000/- at 10.30 a.m., he also failed to produce any record regarding the fact that computer network system had failed, he also did not produce any record to show that the cheque in question was produced for clearance at 12.30 p.m.From testimony of PW4, it cannot be held that at the time when cheque was presented, there were insufficient funds in the account of accused rather from the statement of account Ex.P8, it is very much clear that at the time when the cheque was presented, there was sufficient amount in the account of accused and the cheque amount was debited from the said account.
Thus it cannot be said that accused committed an offence punishable under Section 138 of Negotiable Instrument Act rather prima facie cheque stood cleared and no satisfactory explanation could be given by the witnesses produced by the complainant about dishonour of the cheque due to insufficient funds.
(ii) There is no cogent evidence produced on record to show that notice issued by complainant was also served upon the accused.
As a sequel to my aforesaid discussion and reasoning, this Court is of the considered opinion that the complainant has failed to prove its case against the accused beyond reasonable doubt.
So the present complaint is dismissed and accused named above is hereby acquitted from the charges levelled against him.............”
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v.
State of Gujarat, 2002(1) RCR (Criminal) 748', held Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -5- that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
This view has been reiterated in State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v.
State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v.
Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar v.
State of Rajasthan,1991(1) SCC 166.which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perveRs.or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.”
In 'Mrinal Das & others v.
The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameteRs.in which interference can be made in a judgment of acquittal, by observing as under: “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”., for doing so.
If the order is “clearly unreasonable”., it is a compelling reason for interference.
When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reveRs.the decision of the trial Court depending on the materials placed.”
Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -6- Similarly, in the case of 'State of Rajasthan v.
Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon’ble Supreme Court has observed as under:- “7.
A judgment of acquittal has the obviousconsequence of granting freedom to the accused.
This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.”
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence.
A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons.
An appeal against acquittal has always been differentiated from a normal appeal against conviction.
Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.”
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10.
There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other.
The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh CRM-A-662-MA of 2009 -7- in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with.
Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction.
The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.”
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
(Paramjeet Singh) Judge July 16, 2013 R.S.Singh Ravinder 2013.07.18 10:23 I attest to the accuracy and integrity of this document Chandigarh