Full Judgment
CRM-A-1009-MA of 2014 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-1009-MA of 2014 Date of decision:04.08.2014 Pardeep Kumar .... Applicant/Appellant(s) Versus Ramesh Chand .... 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. Namit Khurana, 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 23.04.2014 passed by learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri 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 issued against him. PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -2- Brief facts of the case are that a complaint was filed by the applicant-complainant under Section 138 of the Negotiable Instruments Act, 1881 alleging that the accused has taken a friendly loan of ` 1 lakh from the complainant on 10.09.2010 for the operation of his wife and in discharge of his existing liability towards the complainant, the accused issued a cheque bearing no.641072 dated 15.12.2010 in the sum of ` 1,00,000/- drawn on State Bank of Patiala, Branch Jagadhri Workshop. It is allegation of the complainant that said cheque was presented by him to his banker State Bank of Patiala, Branch Jagadhri Workshop but the said cheque was dishonoured by the bank vide bank memo dated 17.12.2010 with the remarks 'Funds Insufficient'. Thereafter, legal notice dated 24.12.2010 was issued by the complainant to the accused calling upon the accused to make the requisite payment within 15 days, but the accused failed to make the said payment and accordingly, complainant filed the present complaint on 19.01.2010 being within the period of limitation. 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. PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -3- The trial Court, after appreciating the evidence, acquitted the respondent of the notice of accusation served against him vide impugned judgment dated 23.04.2014. Hence, this application for grant of leave to 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:-
“13. Upon the careful perusal of the case file, it is revealed that the signatures on the cheque are not being disputed by the accused. Under such circumstances, since signatures on the cheque are being admitted, this Court is of the opinion that prima facie presumption exists in favour of the complainant and the onus of rebutting the said presumption was upon the accused who could have done so on the basis of his defence evidence as well as on the basis of circumstances existing in the case and from cross-examination of the complainant.
14. Perusal of the case file reveals that before the filing of the present complaint, when statutory notice was served upon the accused, the same was replied by the accused vide his reply dated 6.1.2011 which is Ex.D1. However, for reasons best known to the complainant, the complainant did not file the said reply to the legal notice with his complaint, though a mention of it was made in the complaint. When the cross examination of the complainant was conducted, the complainant feigned PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -4- ignorance about the said reply to legal notice. It was only at the stage of defence evidence that the said reply to legal notice was brought on the case file as Ex.D1. As such at the very outset the complainant has not approached the court with clean hands and has not conducted himself as per the conduct of a prudent man and has tried to hide the case of the accused from the court as far as possible for him. At this stage it is pertinent to note that in John K. John (supra), it has been held by Hon'ble Supreme Court of India that in a case u/s 138 of the Act where the complainant does not come to the court with clean hands and his conduct is not a conduct of a prudent man, the accused thus discharges his burden to rebut the presumption available u/s 139 of the Act.
15. From the perusal of the reply to legal notice it is transpiring that even prior to the filing of the present complaint and prior to the date on which evidence was brought by the complainant to prove his case, it was in the knowledge of the complainant that the accused is taking up a defence to the effect that he had not borrowed the cheque amount from the complainant and had only borrowed Rs.26,000/- from him which has already been partly repaid in the tune of Rs.12,000/- by him to the complainant by cheque dated 8-7-2010 and remaining Rs.14,000/- has been repaid in form of cash on 18-11-2010. Under such circumstances it was of paramount importance for the complainant to at least discharge the initial burden to the effect that money was actually advanced by him to the accused in the tune of Rs.1 lakh as alleged. However, from the cross PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -5- examination of the complainant it is revealed that the complainant has stated that when money was advanced by him to the accused nothing was reduced into writing between the parties. It has further been stated by the complainant in his cross examination that money which was given by him to the accused was given in the presence of his own employee Rahul who has not been examined by the complainant for unexplained reasons best known to him. Adverse inference of the same has to go against the complainant especially when it was in the knowledge of the complainant that accused is denying his liability. It is further pertinent to note that though the complainant has stated to the effect that money was withdrawn by him from his a/c maintained at Punjab National Bank for giving the same to the accused, but no bank record has been brought on record to prove the fact that money was in fact withdrawn by the complainant on the date on which payment was allegedly made by him to the accused. When it was in prior knowledge of the complainant that accused is denying the fact of having received the alleged amount from the complainant, the failure of the complainant to bring such an important record of the case file has to be either explained by the complainant which has not been done by him and in absence of such explanation strong adverse inference is bound to go against the complainant himself. The complainant has further stated to the effect that he has not even reflected the fact of having given such a huge sum of money to the accused in his income tax return though he files his income tax return. The complainant though has stated to the effect that he was having PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -6- friendly relations with the accused, has not been able to even state before the court as to what were those cordial relations which prompted him to advance such a huge sum of money to the accused and that too without reducing anything into writing and without even charging any interest from the accused. All these facts taken cumulatively into consideration leads the court to a situation where in the opinion of the court the accused has been able to rebut the existence of presumption against him till the requisite level of proof being preponderance of probabilities.
14. The defence of the accused was to the effect that two blank cheques were given by him to the complainant as security when Rs.26,000/- were taken by him from the complainant. The accused has further stated that the complainant had used one such cheque already against him by withdrawing Rs.12,000/- from his a/c on 8-7-2010. This fact of having made the withdrawal has been admitted by the complainant in his cross examination. As such the accused appears to be taking a probable defence in his favour.
15. It is further pertinent to note that the story of the complainant is to the effect that money was given by him to the accused on 10-9-2010. However, in his cross examination, the complainant has admitted the fact that withdrawal of Rs.12,000/- was made by him from the a/c of the accused on 8-7-2010. The very fact that the complainant has made a withdrawal from the a/c of the accused on 8-7-2010 itself makes the story of the complainant doubtful to the effect that money was given by him to the accused on 10-9-2010 because it leads to a PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -7- situation where the lender as first taken a repayment and then lended the money which is not at all a probable situation. It is not also the case or explanation of the complainant that earlier also the accused owed money to him.
16. In light of my discussion as above made, this Court is of the opinion that in the present case existence of legally recoverable debt and liability which happens to be an important ingredient of the offence in question is not being fulfilled and the accused also appears to have taken up and proved a probable defence in his favour till the requisite level of proof being preponderance of probabilities and has been able to rebut the existence of presumption against him.
17. In view of abovesaid discussion, the present complaint of the complainant is hereby dismissed and the accused present in the court is hereby acquitted of the accusations levelled against him. His bail bonds and surety bonds stand discharged. File be consigned to the record-room after due compliance.”
. 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 PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -8- 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, “ 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, PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -9- 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 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 PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document CRM-A-1009-MA of 2014 -10- 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 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 of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, application for leave to appeal is dismissed being devoid of merit. (PARAMJEET SINGH) 04.08.2014 JUDGE parveen kumar PARVEEN KUMAR201408.15 13:47 I attest to the accuracy and integrity of this document