Full Judgment
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1499 of 2017 ------ Dinesh Agarwal @ Dinesh Kumar Agarwal .... .... …. Petitioner Versus 1.The State of Jharkhand 2.Ravi Kant Prasad .... .... .... Opposite Parties ------ CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE B.B. MANGALMURTI For the Petitioner : Mrs. Jasvindar Mazumdar, Advocate For the State : Mr. Abhinesh Kumar, A.P.P. C.A.V. on 08.11.2017 Pronounced on 06.12.2017 B.B.Mangalmurti, J.
Instant application has been filed seeking leave to appeal against the judgment dated 06.05.2017 passed in C.P. Case No. 413 of 2015 / Trial Case No.748 of 2017 by Sri Vimal Johnson Kerketta, Judicial Magistrate, 1 st Class, Dhanbad by which the accused is acquitted under Section 138 of the Negotiable Instrument Act.
2. The short fact of the case is that complainant Dinesh Agarwal @ Dinesh Kumar Agarwal and accused Ravi Kant Prasad were having cordial relationship when accused asked for Rs.1,20,000/- as friendly loan from the complainant with a promise that it would be returned within one month. Believing the assurance, complainant gave Rs. 1,20,000/- on 23.06.2014. The further case is that when the complainant after one month requested for return of the loan amount, an account payee cheque dated 24.07.2014 drawn on PNB, Nirsa, Dhanbad for Rs.1,20,000/- was handed over. When the complainant presented the cheque for its encashment, it was dishonoured for the reason ‘insufficient fund’ vide memo dated 11.10.2014 and the complainant was informed by his banker on 19.12.2014. Thereafter, complainant made a telephonic call and informed about the dishonouring of the cheque but he refused to refund the amount. The complainant dispatched demand notice to the accused through registered post -2- with acknowledgement through his lawyer on 05.01.2015 and the same was served upon him. In spite of the service of notice, accused neither replied nor paid the cheque amount to the complainant within stipulated period, giving rise to lodgment of this case under Section 138 of the Negotiable Instrument Act being Complaint Case No. 413 of 2015.
3. After finding prima facie case against accused, substance of accusation was explained to him. The court, after recording the evidence of complainant, marked 04 exhibits in this case whereas the defence has not produced any witness nor exhibited any document.
4. The court after appreciation of the evidences adduced in the case found that all the ingredients and provisions of Section 138 of the Negotiable Instrument Act are not satisfied and the complainant has not been able to prove his case against the accused beyond the shadow of all reasonable doubts. The court thereby did not held the accused Ravi Kant Prasad guilty and acquitted him of the charge under Section 138 of the Negotiable Instrument Act.
5. Learned counsel appearing on behalf of the petitioner while assailing the judgment of acquittal submitted that without proper appreciation of the evidences the trial court has acquitted the accused. She further submitted that the court has failed to appreciate that the petitioner was the holder of the cheque in question in due course and has exhibited the cheque return memo as well as the legal notice but the trial court failed to appreciate the fact that there was no rebuttal from the side of accused person.
6. Learned A.P.P. appearing on behalf of the State submitted that the trial court has considered the materials brought on behalf of complainant but found that the cheque was dishonoured on 11.10.2014 and information was received by the complainant on 19.12.2014 but it is not proved by the complainant whether -3- notice in writing to the drawer of the cheque was sent within 30 days of the receipt of information by the complainant from the bank regarding return of the cheque as unpaid or not. The complainant has only identified the photocopy of postal receipt dated 05.01.2015 and as the same is not sufficiently proved, the same is not admissible in evidence. He also submitted that the legal notice was brought on record but complainant has failed to prove how the notice was sent to the accused or even the notice was sent to the accused or not. The court has also held that the complainant has not corroborated the fact of advancement of friendly loan which, as per his admission, was borrowed from his mother and wife but both were not examined as witnesses in this case. Therefore, the trial court has rightly acquitted the accused in this case.
7. Considering the above pleadings of the parties and on perusal of the lower court records as well as the materials brought before this Court it appears that the trial court after due scrutiny of the evidences has found that the amount which was mobilized by the complainant from his mother and wife, the quantum of money from each of them was not specified. The court also held that mother and wife were not brought before the court as witnesses to prove this version. The court also indicated that the mobilization of friendly loan advanced to the accused was not made, therefore, it creates doubt whether any friendly loan was given to the accused or not.
8. It further appears that the postal receipt dated 05.01.2015 was marked ‘X’ for identification since it was a photocopy. In absence of postal receipt not being brought on record as exhibit, it created doubt and the trial court did not accept the service of legal notice properly on accused person. In these backgrounds, the trial court did not find the case proved against the accused and finally acquitted him from the charges under Section 138 of the Negotiable Instrument Act. Since the -4- source of amount of friendly loan was not proved by sufficient evidence and service of legal notice which is one of the main ingredients of the provisions of Section 138 of the Negotiable Instrument Act neither established by the complainant, we do not find any occasion to grant such leave.
9. In the result, prayer for grant of leave to appeal against the judgment dated 06.05.2017 passed in C.P. Case No. 413 of 2015 / Trial Case No.748 of 2017 is rejected.
10. Accordingly, the instant application is dismissed. (Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.) Birendra/ A.F.R.