M/S Ramesh Chandra Naveen Kumar ... vs Smt Chanda Bansal
2023 Latest Caselaw 11697 MP

                                                            1
                            IN    THE         HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
                                                 ON THE 26 th OF JULY, 2023
                                              CRIMINAL APPEAL No. 7518 of 2022

                           BETWEEN:-
                           M/S RAMESH CHANDRA NAVEEN KUMAR TROUGH
                           PROPERITOR ROOPESH JAIN S/O LATE SHRI RAMESH
                           CHANDRA JAIN, AGED ABOUT 46 YEARS, R/O BEHIND
                           JAIN MANDIR KIRI MOHALLA DISTRICT VIDISHA
                           (MADHYA PRADESH)

                                                                                        .....APPELLANT
                           (BY SHRI ATUL GUPTA- ADVOCATE )

                           AND
                           SMT CHANDA BANSAL W/O SHRI S K BANSAL, AGED
                           ABOUT 58 YEARS, R/O A 18 BALAJI AVENUE RAJEEV
                           NAGAR DISTT VIDISHA (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI ATUL SHARMA- PANEL LAWYER)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

Heard on IA No.13688/2022, which is an application for leave to appeal under Section 378(4) of CrPC against the judgment of acquittal dated 21.07.2022 passed by Shri Chandan Singh Chauhan, Chief Judicial Magistrate, Vidisha in Criminal Case No.577/2016 whereby respondent Chanda Bansal was acquitted of the charge of offence punishable under Section 138 of Negotiable Instruments Act.

The appellant, in the application for leave to appeal submited that respondent Chanda Bansal has taken a loan of Rs.20,00,000/- for her personal Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 27-07-2023 10:22:10 AM

need from appellant-Ramesh Chandra. To repay the loan, respondent had given a cheque dated 21.03.2016 in sum of Rs.20,00,000/- payable from her account in HDFC bank, Branch, Khari Phatak, Vidisha. The cheque was presented for encashment on 01.06.2016, but it was dishonoured on 02.06.2016. Despite service of demand notice t o respondent, she had not paid the amount of cheque, therefore, a complaint under Section 138 of NI Act was filed. Learned Judicial Magistrate, after trial, passed the impugned judgment on 21.07.2022 and acquitted respondent-Chanda Bansal.

I t is further stated that learned Trial Magistrate without properly appreciating the evidence on record acquitted the respondent. The Trial Court

failed to appreciate that in her statement under Section 313 of CrPC, respondent has admitted commercial transactions between her son Amit Bansal and the appellant. The alleged loan was extended to respondent as both the families had regular financial transaction between them. Learned Trial Court has failed to appreciate that onus of showing absence of legally recoverable debt or liability was on the respondent. The only defence of respondent was that the cheque in question was stolen by the present appellant but the probability of said defence was not established. The defence witness, Raman Agrawal admitted that no report was made regarding theft of the cheque. The acquittal of respondent under Section 138 of NI Act is bad in law, therefore, leave to appeal may be granted to appellant against the impugned judgment of acquittal dated 21.07.2022.

Learned counsel for the appellant submits that in Para 19 of the impugned judgment despite mentioning that there was commercial transaction between husband and son of the accused with the complainant, learned Trial Court

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refused to accept the fact that accused Chanda Bansal has taken loan of Rs.20,00,000/- from the complainant. This finding is based on assumption, therefore, bad in law. Learned counsel further submits that the presumption under Section 139 of NI Act was not duly considered by the learned trial Court.

Per contra, learned counsel for the respondent submits that there was no commercial transaction between the respondent/accused Chanda Bansal with the complainant. Further, the complainant in his evidence could not clarify when and through what mode, he had given loan of Rs.20,00,000/- to accused Chanda Bansal. Thus, the factum of loan to the accused Chanda Bansal being doubtful, learned Trial Court committed no error in acquitting her.

Heard both the parties. Perused the record. From study of judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa Vs State of Karnataka, (2007) 4 SCC 415, Murugesan v. State through Inspector of Police, AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SUPREME COURT 321, Habib v. State of Uttar Pradesh, AIR 2013 SUPREME COURT 1764, State of Madhya Pradesh v. Dal Singh, AIR 2013 SUPREME COURT 2059 and State of U. P. v. Gobardhan, AIR 2013 SUPREME COURT 3033, following broad principles may be culled

out:-

(1) The appellate Court has full power to review, re-appreciate and reconsider the evidence etc. (2) The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on the questions of fact or of law.

( 3 ) The reversal of the acquittal can be made only if the Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 27-07-2023 10:22:10 AM

conclusions recorded by the learned trial Court do not reflect a possible view. "Possible view" denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher Court.

(4) The court should interfere only where it finds an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view.

(5) In exceptional circumstances and for compelling reasons the appellate Court should not hesitate to reverse a judgment of acquittal passed by the lower Court, if the findings so recorded by lower Court are found to be perverse, i.e. if the conclusions arrived at by the Court are contrary to the evidence on record, or if the Courts entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. (6) Subject to aforesaid, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. (7) The appellate Court must bear in mind that the presumption of innocence in favour of the accused has been bolstered by an acquittal by the lower Court.

I n the backdrop of aforesaid legal position, an examination of fact situation in the instant case reveals that Rupesh Jain, PW-1 has stated that the accused has requested for loan of Rs.20,00,000/- for her personal need, but in cross-examination he could not specify on what date, month or year, he had advanced loan of such a big amount to accused Chanda Bansal. Although he had financial transactions with the husband and son of accused, but there was no transaction between him and the accused.

Learned trial Court on critical evaluation of attending circumstances doubted existence of loan transaction, therefore, relying upon the law laid down

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in case of Krishna Janardhan Bhat vs Dattatraya G. Hegde (2008) 3 MPLJ 109 and Rev.Mother Marykutty vs Reni C Kottaram & Anr (2012) 1 SCC 327, held that accused was successful in rebutting presumption under Sections 139 and 118 of NI Act that the cheque was issued for discharge of legal debt or liability.

In aforesaid circumstances, in the opinion of this Court, learned trial Court has considered the entire material against accused on record and on reasonable appreciation of evidence, after assigning detailed and cogent reasons, has acquitted the accused/respondent. The findings of Lower Court cannot be said to be contrary to the evidence on record. The judgment is not patently illegal or perverse, therefore, no case for interference in the finding of acquittal is made out. (Basalingappa Vs. Mudibasapa (2019) 5 SCC 418 relied).

Accordingly, this application for leave to appeal against acquittal deserves to be and is hereby rejected.

Consequently, the appeal also stands dismissed.

(SANJEEV S KALGAONKAR) JUDGE Avi

Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 27-07-2023 10:22:10 AM