Judgment:
Crl.
Misc.
No.646-MA of 2008 (O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Crl.
Misc.
No.646-MA of 2008 (O&M) Date of Decision:
10. 7.2013.
M/s M.R.G.Finance PVT.Ltd.......Applicant Versus Sarabjit Singh .......Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Ramandeep Singh, Advocate for Mr.R.S.Bajaj, Advocate for the applicant-appellant.
**** SABINA, J.
Respondent had faced the trial qua commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short) in a complaint filed by the applicant with regard to dishonour of cheque in question in the sum of ` 1,52,500/-.
The Trial Court vide judgment 11.7.2008 acquitted the respondent of the charge framed against him.
Hence, the present application under Section 378(4) of the Code of Criminal Procedure, 1973 praying for leave to appeal by the applicant.
After hearing the learned counsel for the applicant, I am of the opinion that the instant application deserves dismissal.
Applicant had filed the complaint alleging therein that respondent had taken the loan to the tune of ` 1,82,600/- from the applicant and had executed hire purchase agreement in this regard.
Respondent after paying only three installments, had failed to repay the remaining loan amount and had issued cheuqe in the sum of ` 1,52,500/- towards full and final settlement of the claim.
However, when the said cheque was presented for encashment, the Crl.
Misc.
No.646-MA of 2008 (O&M) -2- same was dishonoured with the remarks 'Insufficient Funds'.
During trial, it transpired that account No.41441 did not belong to the respondent.
The said account was in the name of Sarabjit Singh son of Harbans Singh resident of village Lakhowal whereas respondent was Sarabjit Singh son of Didar Singh resident of Narad.
Thus, to constitute an offence under Section 138 of the Act, the cheque has to be drawn by a person on an account maintained by him.
Since in the present case, the account in question did not pertain to the respondent, the learned Trial Court rightly ordered that the respondent could not be criminally prosecuted.
Their lordships of the Supreme Court in Allarakha K.
Mansuri v.
State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
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 mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.”
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v.
Sanjay Thakran (2007) 3 SCC Crl.
Misc.
No.646-MA of 2008 (O&M) -3- 755 and in Chandrappa v.
State of Karnataka, (2007) 4 SCC 415.
Similarly, in Mrinal Das & others v.
The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameteRs.in which interference can be made in a judgment of acquittal, by observing as under:
“8. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted.
However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision.
In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused.
The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court.
If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion.
The appellate court can also review the conclusion arrived at by the trial Court with respect to Crl.
Misc.
No.646-MA of 2008 (O&M) -4- both facts and law.
While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal.
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”.
The reasons given by the Trial Court, while acquitting the respondent of the charges framed against them are sound reasons.
Learned counsel for the applicant has failed to point out any misreading of evidence on record by the Trial Court which would warrant interference by this Court.
No ground is made out to grant leave to file an appeal.
Accordingly, this application is dismissed.
Since the application for grant of leave to file an appeal is dismissed on merits, the application seeking condonation of delay in filing the said application is rendered merely academic and is disposed of accordingly.
(SABINA) JUDGE July 10, 2013 Gurpreet