Full Judgment
CRM-A-753-MA of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-753-MA of 2013 (O & M) Date of decision:04.08.2014 Munni .... Applicant-Appellant(s) Versus Surjit Singh .... Respondent(s) CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment?. 2) To be referred to the Reporters or not?. 3) Whether the judgment should be reported in the Digest?. Present: Mr. K.B.S.Mann, Advocate, for the applicant. ***** PARAMJEET SINGH, J.
(ORAL) The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 07.12.2011 passed by learned Judicial Magistrate Ist Class, Panchkula whereby complaint filed by applicant under Section 138 of the Negotiable Instruments Act has been dismissed and respondent has been acquitted of the notice of accusation served against him. Brief facts of the case are that a complaint was filed by the PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -2- applicant-complainant under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 of the Indian Penal Code alleging that respondent borrowed Rs.90,000/- from her and the respondent in discharge of his liability, issued cheque no.299628 dated 18.08.2006 for Rs.30,000/- drawn on Punjab National Bank, Sector-4 Panchkula in her favour. However, when the same was presented in her bank i.e. Panchkula Urban Cooperative Bank Ltd., Sector 10, Panchkula, it was dishonoured due to “insufficient funds”. vide memo dated 22.08.2006. Thereafter, legal notice dated 12.09.2006 under registered A.D and UPC was sent to respondent which was duly received by him. He gave its reply dated 25.09.2006, but failed to pay the cheque amount. Thereafter, the complainant filed the complaint before the trial Court. On the basis of preliminary evidence, notice of accusation for commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 was served upon the accused-respondent to which he pleaded not guilty and claimed trial. The complainant, in order to prove his case, examined himself as CW1. Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded wherein he pleaded complete innocence and false implication. The trial Court, vide judgment dated 07.12.2011, after appreciating the evidence, acquitted the respondent of the notice of accusation served upon him. Hence, this application for grant of leave to PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -3- appeal. I have heard learned counsel for the applicant and gone through the impugned judgment. The trial Court, after appreciating the evidence on record, observed as under:-
“16. In the present case admittedly, case was referred to permanent Lok Adalat. Both the parties agreed for the settlement. Accordingly, accused agreed to pay Rs.60,000/- in all to complainant against two cheques. He paid Rs.10,000/- in cash to complainant on the same day i.e. on 19.11.2008 and agreed to pay remaining amount of Rs.50,000/- by way of monthly installment of Rs.5,000/- on or before 10th of every month. Their statements in this regard were recorded. But subsequently, he failed to pay the amount.
17. It was held by the Hon'ble Madras High Court in M/s Valarmathi Oil Industries Vs. M/s Saradhi Ginning Factory AIR2009 Madras 180 that Judicial Magistrate becomes functus officio, to decide the case after the award passed by Lok Adalat, to convict the accused under Section 138 of the Act. In such circumstances, the remedy available to complainant is similar to that of decree holder, who obtained a decree through civil court, his remedy is executing a decree passed by civil court. Similar view was taken by the Hon'ble Supreme Court in K.N.Govindan Kutty Menon Vs. C.d. Shaji on 28 November, 2011 in civil appeal No.10209 of 2011 arising out of SLP © No.2798 of 2010. PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -4- 18. Thus, in view of the aforesaid case law, the present complaint is not maintainable. Once matter was compromised in the Lok Adalat, it should not have been sent to this Court again.
19. Even otherwise complainant has herself admitted in her cross-examination that cheque Ex.C1 is of security. It was held by the Hon'ble Supreme Court in Sudhir Kumar Bhall vs. Jagdish Chand and others, 2009(2) CCC199that the provisions of Section 138 of the Act is attracted only on account of dishonour of cheque issued in discharge of liability of debt, but not on account of issuance of security cheque. Similar view was taken by the Kerala High Court in Sreenivasan Vs. State of Kerala, 2000(1) CCC114(Kerala) and the Gujarat High Court in Shankju Concretes Pvt. Ltd. and others Vs. State of Gujrat and another 2000 (3) CCC126(Gujrat).
20. In Taher N. Khambati Vs. Vanayak Enterprises, 1995(1) KLT556 the Andra Pardesh High Court held that security cheque is taken with a view to make use of it if accused commits default in payment. It is a threat to accused for realization of the amount. Therefore, it cannot be construed that accused had issued cheque voluntarily for discharge of any debt or legal liability as envisaged under Section 138 of Negotiable Instruments Act.
21. In view of the aforesaid case laws also no offence under Section 138 of the Act is made out against accused.
22. Further, complainant had received the blank cheque even before granting loaning. So it cannot be PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -5- said that it was issued in discharge of any liability or debt. She had filled up the amount, date and name in cheque Ex.C1 subsequently without the consent of accused. It is constitutes alteration of the cheque. Therefore, presumption under section 139 of the Act stands rebutted. Complainant is in income tax payee. But she has not shown this amount in her income-tax. Thus, liability to repay unaccounted cash is not legally enforceable liability.”
. The Hon'ble Supreme Court in Muralidhar @ Gidda & Anr. vs. State of Karnataka 2014(2) RCR (Criminal) 507 has held as under:
“10. Lord Russell in Sheo Swarup vs. King Emperor [AIR1934 Privy Council 227]. highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, “the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”
. The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh v. State; {AIR 1952 SC52, while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -6- “ the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”. 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State; [AIR 1954 SC1, Madan Mohan Singh v. State of U.P.; [AIR 1954 SC637, Atley v. State of U.P.; [AIR 1955 SC807, Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC217, Balbir Singh v. State of Punjab; [AIR 1957 SC216, M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC200, Noor Khan v. State of Rajasthan; [AIR 1964 SC286, Khedu Mohton v. State of Bihar; [(1970) 2 SCC450, Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC793, Lekha Yadav v. State of Bihar; [(1973) 2 SCC424, Khem Karan v. State of U.P.; [(1974) 4 SCC603, Bishan Singh v. State of Punjab; [(1974) 3 SCC288, Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC228, K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC355, Tota Singh v. State of Punjab [1987(2) R.C.R. (Criminal) 35: (1987) 2 SCC529, Ram Kumar v. State of Haryana; [1994(3) R.C.R.(Criminal) 631 :
1995. Supp (1) SCC248, Madan Lal v. State of J&K; [1997(4) R.C.R.(Criminal) 89: (1997) 7 SCC677, Sambasivan v. State of Kerala; [1998(2) R.C.R.(Criminal) 693 : (1998) 5 SCC412, Bhagwan Singh v. State of M.P.; [2002(2) R.C.R.(Criminal) 593 : (2002) 4 SCC85, Harijana PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -7- Thirupala v. Public Prosecutor, High Court of A.P.; [2002 (3) R.C.R.(Criminal) 861 : (2002) 6 SCC470, C. Antony v. K. G. Raghavan Nair; [2002(4) R.C.R. (Criminal) 750 : (2003) 1 SCC1, State of Karnataka v. K. Gopalakrishna; [2005(2) R.C.R.(Criminal) 20 : (2005) 9 SCC291, State of Goa v. Sanjay Thakran; [2007(2) R.C.R.(Criminal) 458 : (2007) 3 SCC755 and Chandrappa v. State of Karnataka; [2007(2) R.C.R. (Criminal) 92:
2007. 1) Recent Apex Judgments (R.A.J.) 841: (2007) 4 SCC415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-753-MA of 2013 -8- conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”
. Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. Otherwise also, there is delay of 638 days in filing this application for leave to appeal. Learned counsel for the applicant submits that the applicant had approached the wrong forum under bona fide belief and filed appeal before learned Sessions Judge, Panchkula which was dismissed on 17.08.2012, therefore, delay in filing the instant application is not intentional. The said contention is not sustainable as the applicant has approached this court after more than 400 days of passing of order by learned Sessions Judge, Panchkula. No cogent reasons are forthcoming for condoning the delay of 638 days in filing the present application. As such, application for leave to appeal is dismissed being devoid of merit as well on account of delay. (PARAMJEET SINGH) 04.08.2014 JUDGE parveen kumar PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document