Vishnu Trading Company vs Sada Ram
2008 Latest Caselaw 637 Del

JUDGMENT

P.K. Bhasin, J.

1. This appeal is preferred by the appellant-complainant impugning the order dated 24.07.1997 passed by the learned Metropolitan Magistrate, Delhi in Complaint Case No. 5/1 whereby its complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') filed against the respondent herein was dismissed.

2. Relevant facts leading to the acquittal of the respondent are that a complaint was filed by the appellant under Section 138 of the Act against the respondent alleging that respondent Sada Ram represented himself to be proprietor of M/s Shiv Trading Company and issued a cheque bearing No. 783652 (Ex. CW-1/C) dated 15.11.90 for a sum of Rs. 2,75,000/- drawn on Punjab National Bank, Naya Bazar in favor of complainant. The complainant firm deposited the said cheque with State Bank of Bikaner and Jaipur, Khari Bowoli, Delhi but the same was dishonored vide memorandum by the respondent's bank and returned back dated 1.12.90 with the remarks 'Account closed'. Thereafter the complainant issued a legal notice of demand dated 10/11-12-90 (Ex. CW-1/E) to the respondent-accused by registered post as well as under certificate of posting (UPC). The notice sent by registered post came back undelivered and one copy of the notice was affixed at residence of the respondent on 15.12.90 by complainant's manager CW-2, Ashok Kumar Bansal. On failure of the respondent- accused to pay the amount of the dishonored cheque within the prescribed time of fifteen days the complainant filed the criminal complaint against the respondent, which however came to be rejected by the trial Court.

3. The complainant firm in order to prove the accusations of the respondent-accused had examined five witnesses. The respondent, on the other hand, in his defense denied being the proprietor of M/s Shiv Trading Company and having issued the cheque in question. He further denied having received any notice of demand or any affixation of the said notice on the property bearing No. 2632 2nd Floor, Gali Laltain Wali. He also denied having any connection with the addresses mentioned at S.Nos. 2 and 3 in the legal notice (Ex. CW-1/E). In his defense the respondent examined himself as his own witness wherein he maintained on oath that neither he had signed the cheque (Ex. CW-1/C) nor he had any concern with the proprietorship of M/s Shiv Trading Company.

4. The learned Metropolitan Magistrate vide his order dated 24.07.1997 concluded that the complainant had not been able to prove its case against the respondent beyond reasonable doubt and acquitted the respondent-accused. Feeling aggrieved the appellant came up in appeal.

5. There was no appearance in the matter from both the sides when the appeal was taken up for hearing which showed that the parties were not really interested in advancing any arguments and since the trial Court record was available with this Court I decided to dispose of the appeal on merits instead of dismissing it for non-prosecution.

6. While dealing with an appeal against acquittal the appellate Court has to keep in mind certain guidelines which have been laid down by the Apex Court. In 'State of Punjab v. Ajaib Singh and Ors. , it was observed by the Hon'ble Supreme Court that:

11. This being an appeal against acquittal we have with the assistance of counsel for the parties gone through the evidence on record with a view to find whether the view favorable to the accused taken by the High Court is based on the evidence on record and is reasonable. It is well settled that in an appeal against acquittal, the appellate court is entitled to re-appreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed.

In an earlier decision also reported as , 'Narinder Singh and Anr. v. State of Punjab', Hon'ble Supreme Court had observed as under:

12. The High Court while considering the appeal against acquittal is not exercising any extra ordinary jurisdiction. Its power to consider and decide the appeal against the judgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence which are reasonably possible one supporting acquittal and the other indicating conviction. High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a trial Court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal is manifestly erroneous and that the trial Court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is unintelligible or defies logic or its conclusions are against the weight of the evidence.

7. Now, keeping in mind these views of the Supreme Court it is to be seen if the impugned judgment in the present case can be said to be unreasonable or perverse. The trial Court has acquitted the respondent for the charge under Section 138 of the Act on the grounds that the complainant firm had failed to establish that the cheque in question was signed by the respondent which he could have proved by sending the cheque to CFSL for comparing the admitted signatures of the respondent with that of the signature on the cheque and also because the complainant had failed to show that the cheque was issued for consideration. Trial Court also came to the conclusion that the demand notice was not served on the respondent.

8. I have gone through the grounds of challenge taken up in this appeal and I find that in the memorandum of appeal one of the grounds sought to challenge the acquittal order is total disregard by the trial Court of the evidence of the appellant-complainant represented by Meghraj (CW-1) who has categorically stated that the cheque in question was signed by the respondent in his presence at his(accused's) shop. Another ground taken by the appellant was that the cheque was issued by the respondent for the supply of rice to the respondent which fact was proved by the statements of CW-1, Megh Raj and CW-2, Ashok Bansal, manager of the appellant firm. Another ground taken up by the appellant was in respect of service of notice to the respondent. The appellant in its memorandum of appeal has also stated that the notice of demand was duly served under UPC and also by way of affixation by its manager, CW-2, Ashok Bansal.

9. After perusal of the trial Court record, I am of the view that the acquittal of the respondent was fully justified and there is no perversity in the decision of the learned trial Court. The respondent had denied having issued the cheque in question and his being the proprietor of M/s Shiv Trading Company which firm had allegedly issued the cheque. This defense was put to the CW-1 who was a partner of the complainant firm, in his cross-examination as well as to the complainant's manager CW-2 Ashok Kumar. Thereafter he maintained the same stand when his statement was recorded after the conclusion of complainant's evidence under Section 313 Cr.P.C. and further by examining himself as his own witness. He denied during his cross-examination that he had any bank account with Punjab National Bank, Naya Bazar Branch or that he had purchased any material from the complainant. In these circumstances the view taken by the learned trial Judge that the complainant had failed to establish that the dishonored cheque based on which the complaint was filed had been signed by the respondent which it could have done by getting an expert opinion in respect of the signature on the disputed cheque cannot be said to be a perverse finding justifying any interference by this Court in appeal. The complainant's partner CW-1 Meghraj had although claimed that the disputed cheque was signed by the respondent in his presence at his (complainant's shop) but this statement of CW- 1 stood contradicted by the statement of complainant's manager CW-2 Ashok Kumar Bansal in his cross-examination to the effect that the cheque in question was given by the respondent to their employee who used to collect payment on their behalf. In my view, the complaint could have been dismissed on this ground alone.

10. Similarly, the finding of the learned trial Court that the complainant had also failed to establish the service of demand notice on the respondent cannot be said to be in any way perverse or unreasonable since even according to the complainant itself the demand notice which had been sent by registered post had been received back unserved. Regarding the stand of the complainant that there was service of notice by affixation also at the residence of the respondent the learned trial Court had relying upon a judgment of Madras High Court in 'R.M. Sunderam v. C.M. Ramraj' 1993 (3) Crimes 175 had come to the conclusion that there has to be actual service of notice and constructive service of demand notice is not contemplated under Section 138 of the Act and further that service of notice by affixation is also not provided for under the provisions of the Act. I do not find any fault with this finding also of the learned trial Court.

11. There being, thus, no perversity in the findings of the learned trial Court this appeal is dismissed.