(In The Matter Of An Application ... vs Nawal Kishore Agarwalla
2023 Latest Caselaw 13109 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                         C.R.A No.135 of 1995
      (In the matter of an application under Section 378(4) of the Cr.P.C)
          Kanhu Charan Mishra                    ....          Appellant
                                     -versus-
          Nawal Kishore Agarwalla                ....          Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                  For Appellant      -      None
                  For Respondent     -      None


                  CORAM:
                  MR. JUSTICE A.C.BEHERA

Date of Hearing :25.09.2023 :: Date of Judgment : 19.10.2023

A.C. Behera, J. This is an Appeal under Section 378 (4) of the Cr.P.C., which has been preferred by the Appellant (who was the complainant in

1.C.C. No.66 of 1993) against the Respondent (who was the accused in

1.C.C. No.66 of 1993) challenging the judgment of acquittal of the accused (Respondent) from the offence under Section 138 of the N.I. Act, 1881 passed on dated 28.01.1995 in 1.C.C. No.66 of 1993 by the learned Judicial Magistrate First Class, Cuttack.

The case of the complainant (Appellant) before the Trial Court against the accused (Respondent) was that, the Respondent had issued a cheque bearing No.8922352 on dated 30.10.1992 for sum of Rs.45,000/- (Rupees Forty-Five Thousand) from his account in Bank of India, Rasulgarh Branch, Bhubaneswar to the complainant in order to discharge

C.R.A. No.135 of 1995 {{ 2 }}

his liability before the complainant. The complainant produced the said cheque in his bank i.e. Urban Co-Operative Ltd., Nuapatna, Cuttack for clearance, but that cheque was dishonoured due to insufficient of funds in the account of the accused. After getting intimation from his bank about the dishonour of the cheque in question, the complainant issued a demand notice to the accused demanding the payment of the cheque amount within fifteen days of receiving that notice, but when in spite of receiving the said demand notice, the accused did not pay the cheque amount to the complainant, then the complainant filed the case vide

1.C.C. No.66 of 1993 against the accused praying for penalising him (accused) for the offence under Section 138 of the N.I. Act, 1881.

2. After taking up of the cognizance of the offence under Section 138 of N.I. Act by the Court, notice was issued to the accused and accordingly, the accused made his appearance in that case vide 1.C.C. No.66 of 1993 and contested the same by taking the plea of complete denial about his any debt or liability before the complainant and also about the issuance of the cheque in question to him (complainant) for Rs.45,000/- (Rupees Forty-Five Thousand).

3. In order to substantiate the aforesaid offence U/s 138 of the N.I. Act, 1881 against the accused, the complainant examined two witnesses from his side including him as P.W.1 and relied upon several documents on his behalf vide Exts.1 to 5, but the defence examined none from its side.

After conclusion of hearing and on perusal of the materials and evidence available on record, Trial Court found the accused not guilty for the offence under Section 138 of the N.I. Act and acquitted the

C.R.A. No.135 of 1995 {{ 3 }}

accused from that offence under Section 138 of the N.I. Act vide judgment dated 28.01.2015 in 1.C.C. No.66 of 1993.

4. On being aggrieved with the aforesaid judgment of acquittal passed in favour of the accused, in 1.C.C. No.66 of 1993, the complainant challenged the same by preferring this Appeal being the Appellant against the accused by arraying him (accused) as Respondent.

5. On perusal of the judgment of the Trial Court, it appears that, when the complainant could not establish lawfully about the issuance of the cheque in question by the accused to him (complainant), then judgment of acquittal has been passed by the Trial Court in favour of the accused.

6. This is an appeal, which has been preferred against the judgment of acquittal, that too, against the judgment of acquittal of the accused from a complaint case.

<It is settled propositions of law that, a judgment of acquittal cannot be disturbed unless the findings of the learned Trial Court are perverse or unreasonable. Because, presumption of innocence is reinforced by an order of acquittal passed by the learned Trial Court in favour of an accused. So, there is double presumption of innocence in favour of an accused after his acquittal. Because, firstly the presumption of innocence i.e. available to him (accused) under the fundamental principle of criminal jurisprudence that, every person shall be presumed to be innocent, unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced/reaffirmed and strengthened by the Court. Thirdly, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of an acquittal recorded by the Trial Court. Therefore, the scope of interference in an Appeal against the judgment of an acquittal like this Appeal at hand is very limited.=

7. On perusal of the materials available in record, it appears that, reasons assigned above by the Trial Court for acquittal of the accused

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from the offence under Section 138 of the N.I. Act, 1881 are backed by the evidence of the witnesses of the complainant including the complainant (P.W.1). For which, it cannot be held that, the judgment of acquittal passed by the Trial Court is improper in any manner.

When it is held above that, the judgment of acquittal passed by the Trial Court in 1.C.C. No.66 of 1993 is not improper, then at this juncture, the question of interfering with the same, through this Appeal filed by the Appellant does not arise. As such, there is no merit in the Appeal of the Appellant. The same must fail.

8. In the result, the Appeal filed by the Appellant is dismissed on merit. The judgment of the Trial Court passed on dated 28.01.1995 in

1.C.C. No.66 of 1993 is confirmed.

9. The Appeal is disposed of finally.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

19th October, 2023//Utkalika Nayak// Junior Stenographer

Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Oct-2023 17:26:48

C.R.A. No.135 of 1995