Madhya Pradesh High Court
Vinod Kumar vs Smt. Manjula on 7 May, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 7 th OF MAY, 2024
MISC. CRIMINAL CASE No. 40491 of 2019
BETWEEN:-
VINOD KUMAR S/O SAMRATHMAL KOTHARI, AGED
ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST
BHATEVRA BAZAR HATOD PS HATOD (MADHYA
PRADESH)
.....APPLICANT
(SHRI ABHAY SARASWAT AND SHRI AMAN YADAV - ADVOCATE)
AND
SMT. MANJULA W/O SHAILESH KOTHARI, AGED
ABOUT 54 YEARS, OCCUPATION: HOUSE WIFE 577,
THIRD FLOOR KHAJURI BAZAR MG ROAD PS
MALHARGANJ (MADHYA PRADESH)
.....RESPONDENT
(NONE APPEARS)
This application coming on for admission this day, the court passed
the following:
ORDER
Heard on admission.
2. The present petition is filed u/S.378(4) of Cr.P.C for granting leave
against acquittal. This petition is filed against the order dated 31.7.2019 passed
in Case No. SC NIA/308/2016 whereby the trial court has acquitted the
respondent u/S.138 of the Negotiable Instrument Act (for short "NI Act").
3. Facts of the case are that the complainant, respondent and applicant
are known each other and respondent took money of Rs.4,00,000/- for her
personal work. Thereafter complainant wants his money back, then respondent
gave one cheque on dated 3.10.2016 cheque No.160238 of Canara bank branch
M.G.Road, District Indore. Thereafter complainant deposits the cheque in his
bank, UCO bank branch Hatod. Thereafter on 17.10.2016 the bank
dishonoured the cheque with the endorsement "insufficient fund". Thereafter
complainant sent a legal demand notice on dated 19.10.2016 for payment of
Rs.4,00,000/- through his counsel and same was received on 21.10.2016 to non
applicant. But respondent did not deposit the money. Therefore, complainant
filed this complaint before trial court. The trial court registered complaint
against the respondent and after trial learned trial court acquitted respondent
u/S.138 of Negotiable Instrument Act.
4. Counsel for applicant submits that the trial court has erred while
acquitting the respondent. It is argued that the applicant has established the
existence of debt liability, however, the trial court has acquitted the respondent
only on the ground that the complainant could not establish the dishonour of the
cheque. He has referred the inward return of UCO bank stating reasons and
description "fund insufficient" and also a certificate issued by UCO bank
certifying that the complainant received the return cheque No.16038 dated
3.10.2016 for amount of rupees four lakh on 17.10.2016 from UCO bank Hatod
branch. He submits that the accused has not disputed the issuance of cheque
and admitted his signature on the same and, therefore, the provisions of
presumption u/S.118A and 139 would attract.
5. In the present case, the cheque was issued by the respondent of
Canara bank of Rupees four lakh which was submitted by the complainant in
the UCO bank. Counsel for applicant submits that the aforesaid certificate and
inward return of UCO bank establishes that the cheque was dishonoured. The
trial court has acquitted the respondent accused on the ground that the
complainant could not prove that the cheque was dishonoured for the reasons
mentioned u/S.138. There was no document of Canara bank dishonouring the
cheque on the ground of insufficient amount in the account of the respondent.
6. After hearing learned counsel for applicant and considering the
evidence on record, this court does not find any error in the order of acquittal.
The provisions of Sec.138 reads as under:-
"138. Dishonour of cheque for insufficiency, etc., of funds in
the account.--Where any cheque drawn by a person on an
account maintained by him with a banker for payment of any
amount of money to another person from out of that account
for the discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is
insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment for a term
which may extend to 2[two] years, or with fine which may
extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless-
(a) the cheque has been presented to the bank within a period
of six months* from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer
of the cheque, 3[within thirty days] of the receipt of
information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or as the case may be, to
the holder in due course of the cheque within fifteen days of the
receipt of the said notice.
Explanation.--For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability."
7. As per the provisions of Sec.138 of NI Act, complaint u/S.138 must
contain the following ingredients:- (i) that there is a legally enforceable debt (ii)
that the cheque was drawn from the account of bank for discharge of all or part
of any debt or other liability which presupposes a legally enforceable debt (iii)
cheque so issued had been returned due to insufficiency of funds.
8. In the present case, there is no document of Canara bank stating that
the cheque issued by the respondent is returned due to insufficiency of funds.
The documents have been filed of the UCO bank where the cheque was
submitted by the complainant. The complainant has also not examined any
witness from the Canara bank to show the aforesaid fact that the cheque was
returned due to insufficiency of fund. Thus, the applicant has failed to
establish the ingredients of Sec.138 that the cheque was returned due to
insufficiency of funds in the account of the accused. In this regard, a
reference may be made to the judgment passed by the Supreme Court in the
case of Krishna Janardhan Bhat Vs. Dattatraya G.Hegde, (2008) 4 SCC
54 as ingredient required under (iii) has not been established. Thus, this court
does not find any error in the order of acquittal.
9. Even otherwise, the scope of interference against the order of
acquittal is no longer res integra. The Supreme Court in the case of State Vs.
K. Narsimhachary reported in (2005) 8 SCC 364 said that as per well
settled principle, if two views are possible, the appellate Court should not
interfere with the findings of acquittal recorded by the lower Court; it can only
be interpreted where the material on record leads to sole inescapable conclusion
of the guilt of accused. In the case of T. Subramanian Vs. State of Tamil
Nadu, (2006) 1 SCC 401, the Apex Court has reiterated the same principle
relying upon said judgment and by interfering in appeal the judgment of the High
Court was set aside restoring the judgment of the trial court acquitting the
accused In the case of K. Prakashan vs. P.K. Surenderan, (008) 1 SCC
258, the Apex Court has observed that in case two views are possible, the
appellate Court shall not reverse the judgment of acquittal only because the
another view may be possibly taken.
10. The Apex Court has held in the case of Mahavir Singh Vs. State
of M.P., (2016) 10 SCC 220 that in the cases of acquittal by the court of law,
the court has to be very cautious in interfering in an appeal unless there are
compelling and substantial grounds to interfere with the order of acquittal. The
relevant paras 11 and 12 of the said judgment of Mahavir Singh (supra)
quoted as under:-
"11. We have heard the learned counsel on either side
at length and perused the material available on
record. Now it is imperative to look into the scope of
interference by the appellate Court in an appeal
against acquittal and whether the High Court was
justified in convicting the accused under Section 302,
IPC by reversing the order of acquittal passed by the
Trial Court.
1 2 . I n the criminal jurisprudence, an accused is
presumed to be innocent till he is convicted by a
competent Court after a full-fledged trial, and once
the Trial Court by cogent reasoning acquits the
accused, then the reaffirmation of his innocence
places more burden on the appellate Court while
dealing with the appeal. No doubt, it is settled law
that there are no fetters on the power of the appellate
Court to review, reappreciate and reconsider the
evidence both on facts and law upon which the order
of acquittal is passed. But the court has to be very
cautious in interfering with an appeal unless there are
compelling and substantial grounds to interfere with
the order of acquittal. The appellate Court while
passing an order has to give clear reasoning for such
a conclusion."
11. In view of the aforesaid facts and enunciation of law, the petition for
leave to appeal against acquittal is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
