Delhi High Court
Jugnu Saini vs Jagdish Prasad Mishra on 1 May, 2017
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 1st May, 2017
+ CRL.L.P. 56/2017
JUGNU SAINI ..... Petitioner
Through: Mr. Nitesh Kumar Singh and Mr.
Rahul Kumar, Advocates
versus
JAGDISH PRASAD MISHRA ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
R.K. Gauba, J. (Oral)
1. The petitioner herein invoked Section 378(4) of the Code of
Criminal Procedure, 1973 (Cr. PC) to seek leave to appeal against the
judgment dated 17.10.2016 of the court of the Metropolitan Magistrate-
02 (North) in complaint case 63/01 whereby his complaint case under
Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act) against
the respondent was dismissed and the respondent consequently acquitted.
2. The complaint case was instituted on the basis of the facts that
cheque no.744043 dated 01.02.2013 drawn on Vijaya Bank, Samaypur ,
Delhi-110 042 in the sum of Rs. 2,00,000/- which had been issued by the
respondent in favour of the petitioner (complainant) had been returned,
upon being presented, by the bank with the remarks "account closed" and
that inspite of legal demand notice dated 23.03.2013, duly served, the
money equivalent to the cheque amount was not paid and, therefore, the
offence under Section 138 of the N.I. Act had been committed.
3. A copy of the proceedings of the trial court, as submitted, discloses
that after the pre-summoning inquiry on the complaint submitted on
03.05.2013, the respondent was put to trial on the basis of notice under
Section 251 Cr. PC, he having contested the case denying having taken
any money from the complainant and taking the defence that his deceased
brother Mr. Dwarka Prasad Mishra had taken some amount from the
complainant but had expired in September 2009 and that he (respondent)
had already settled the matter with the complainant with regard to such
liability of his deceased brother by paying an amount of Rs.2,79,000/- to
him at Rohini Court and that the case presented was false.
4. The complainant led evidence by examining himself as CW-1 on
the strength of his affidavit CW1/A. The respondent also led evidence by
examining himself as DW-1. The learned trial judge found the
respondent to have been successful in rebutting the presumption of
liability and the version of the complainant having advanced a loan for
repayment of which the cheque was issued to be not believable. In this
context, the defence evidence led was taken note of.
5. It appears that the complainant had instituted another criminal
complaint case with similar allegations of offence under Section 138 of
N.I. Act respecting another cheque, it bearing no.744042 drawn against
the same very account of the respondent, it bearing the date of its issue as
of 2010. The said other cheque, noticeably a cheque leaf immediately
preceding the cheque which is the subject matter of the proceedings at
hand, when presented at the bank was returned unpaid on 24.02.2010
with the remarks "account closed". By the evidence led in defence, it
was proved beyond all doubts that in the proceedings arising out of the
previous complaint case instituted in 2000, the respondent had paid and
the petitioner had received an amount of Rs.2,79,000/- as full and final
settlement.
6. The learned trial court has disbelieved the version respecting the
circumstances in which the cheque which is the subject matter of the
present case to have been issued for the reason the petitioner had been put
to caution in the context of the earlier cheque which had returned unpaid
on 24.02.2010 with the remarks informing him that the account stood
closed. The Magistrate observed that, in these circumstances, the same
very petitioner could not have accepted yet another cheque against the
same very account, such cheque being the very next leaf, after a gap of
two years, it clearly being the period during which the proceedings in the
other case were still pending.
7. In these facts and circumstances, the view taken by the learned trial
court cannot be said to be perverse or implausible.
Dismissed.
R.K.GAUBA, J.
MAY 01, 2017
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