M/S G.D. & Company Ganj Morar vs Shankuntla Goyal
2023 Latest Caselaw 3405 MP

                                                                 1
                          IN     THE        HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                              ON THE 27 th OF FEBRUARY, 2023
                                             CRIMINAL APPEAL No. 656 of 2006

                         BETWEEN:-
                         M/S G.D. & COMPANY GANJ MORAR S/O THROUGH
                         PROP. PRAKASH CHAND AGRAWAL , AGED ABOUT 39
                         YEARS, S/O LATE SHRI PREM NARAYAN AGRAWAL R/O
                         GANGAMAI SANTAR, MORAR, GWALIOR (MADHYA
                         PRADESH)

                                                                                       .....APPELLANT
                         (NO ONE APPEARS FOR THE APPELLANT )

                         AND
                         SHANKUNTLA GOYALW/O SHRI VINOD KUMAR GOYAL
                         , AGED ABOUT 42 YEARS, OCCUPATION: R/O 73, RAMA
                         MKT, NEAR MAHAVEER, SCHOOL PHALKA BAZAR,
                         LASHKAR, GWALIOR (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                         (BY SHRI RINKESH GOYAL- ADVOCATE)

                               Th is appeal coming on for hearing this day, t h e court passed the
                         following:
                                                            JUDGMENT

The present appeal against the judgment of acquittal is pending since 2006. More than 16 years have passed. Today, no one appears for the appellant to argue the matter though this matter has been listed today on the request of counsel for the appellant in the light of order dated 13-02-2023. This Court thinks appropriate to pass judgment after perusing the record of Court below as well as after hearing the other side.

Instant Criminal Appeal under Section 378 of CrPC has been preferred Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/3/2023 6:42:41 PM

by appellant- complainant against the judgment of acquittal dated 15-09-2003 passed by the Court of JMFC, Gwalior in Criminal Case No. 276 of 2000, whereby respondent has been acquitted of offence under Section 138 of Negotiable Instruments Act.

Facts giving rise to present appeal, in short, are that appellant Prakash Chand Agarwal is the proprietor of M/s. GD & Company. The respondent had given cheque of Rs.10 lac to appellant for the purpose of settlement of civil dispute pending before civil Court on 25-06-1998 and same was returned unpaid due to insufficient funds in the Bank on 29-08-1998 with a remark ''stopped by drawer''. Thereafter, appellant issued a notice on 10-09-1998 to

respondent and respondent filed reply to notice on 21-09-1998. Due to non- payment of aforesaid amount, thereafter, appellant filed a complainant under Section 138 of the NI Act before the Court below. After receiving notice, respondent appeared before the Court below and denied allegations made by appellant and inter alia it is pleaded that the appellant is doing share business and got signatures on the blank cheques from respondent and same was mus- appropriated. After recording evidence of the parties, the trial Court vide impugned judgment rejected the compliant filed by appellant- complainant on the ground that there was no liability of respondent to issue cheque in favour of the said Company and acquitted him of charge under Section 138 of NI Act. Being dissatisfied, the instant criminal appeal has been filed by complainant.

In the memo of appeal, it is stated by complainant that the alleged cheque bears signature of respondent, therefore, a presumption can be raised that cheque was given in discharge of a debt or liability and it was the duty of respondent to explain as to what purpose the alleged cheque was issued. It is further stated that trial Court has wrongly relied the appellant as a separate Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/3/2023 6:42:41 PM

entity from respondent while it is only a trade name and also failed to take into consideration document Ex.P1.

Shri Goyal, learned counsel for the respondent submits that after considering the material available on record, the trial Court has rightly passed the impugned judgment and there is no perversity or illegality committed by trial Court. Only in a case when the judgment of trial Court is stated to be perverse, then it is open to the High Court to reappraise the evidence. It is further submitted that the scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned trial Court. In support of his contentions, he has relied on the judgment of Apex Court in the case of Basalingappa vs. Mudibasappa, 2019(5) SCC 418 and Rajaram (since deceased) through LRs vs. MNaruthachalam (since deceased) through LRs 2023 Live Law (SC) 46.

It is settled law that reversal of acquittal is permissible only if the view of the Trial Court is not only erroneous but also unreasonable and perverse. On perusal of record, it is evident that the trial Court has not committed any illegality or perversity in passing the impugned judgment of acquittal. The evidence collected during trial is not sufficient to hold respondent guilty of offence under Section 138 of NI Act. Appeal fails and is hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 3/3/2023 6:42:41 PM