Punjab-Haryana High Court
Mushtaq Ali vs Rajman Ali on 23 January, 2024
Neutral Citation No:=2024:PHHC:009351
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CRM-A-757-MA-2018(O&M) 2024:PHHC:009351
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
225
CRM-A-757-MA-2018(O&M)
Date of Decision:23.01.2024
MUSHTAQ ALI
...Applicant/Appellant
Versus
RAJMAN ALI
...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Sunny K. Singla, Advocate
for the applicant-appellant.
****
HARPREET SINGH BRAR, J. (ORAL)
1. This instant application under Section 378(4) CrPC is preferred
against the judgement dated 16.01.2018 passed by learned Judicial Magistrate
Ist Class, Malerkotla vide which the complaint No. 22 of 22.02.2013 filed
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as NI Act)was dismissed and the present respondent was acquitted.
2. The facts, in brief, are that the respondent borrowed a sum of
Rs.4,00,000/- from the applicant and in order to discharge his legal liability, he
issued a cheque bearing no.052155 dated 05.11.2012 of Rs.4,00,000/- in favour
of the applicant drawn on State Bank of Patiala, Ahmedgarh. However, when
the said cheque was presented for encashment, it was returned with remarks
'Funds Insufficient' vide memo dated 19.12.2012. A demand notice dated
04.01.2013 was sent by the applicant calling upon the respondent to make the
payment, but the respondent failed to pay the cheque amount. Aggrieved by the
same, the applicant preferred the above-mentioned complaint before the
learned trial Court against the respondent.
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3. Having heard the learned counsel for the applicant and after
perusing the record with his able assistance,it is manifestly clear that the
applicant had stood as a guarantor for the respondent qua his loan of
Rs.1,00,000/- from one Jodha Kumar, which ultimately the applicant had to
repay on the behalf of the respondent. This made him aware of the poor
financial condition of the respondent and it is highly improbable that despite
knowing the said poor condition of the respondent, the applicant would still
advance a loan of Rs.4,00,000/- to the respondent. Furthermore, the applicant
had himself suffered a statement before the police that the cheque in question
was issued by the respondent as a share of his investment in the joint venture
with the applicant to set up a Nickel Factory. The conjoined reading of the
statements suffered by the applicant makes it clear that no cash loan of
Rs.4,00,000/- was ever given to the respondent by the applicant. Thereby, the
stand taken by the learned trial Court that the presumption as provided under
Section 139 of the NI Act was successfully rebutted by the respondent stands
validated.
4. Furthermore, the power of the Appellate Court to unsettle the
order of acquittal on the basis of re-appreciation of the evidence is subject to
the settled law that where two views are possible and out of the two, one points
towards the innocence of the accused, the view which favours the accused
should prevail over the other pointing towards his guilt. Furthermore, the trial
Court has the additional advantage of closely observing the prosecution
witnesses and their demeanour, while deciding about the reliability of the
version of prosecution witnesses. (See H.D. Sundara and others Vs. State of
Karnataka, Criminal Appeal No.247 of 2011 decided on 26.09.2023; Kali
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CRM-A-757-MA-2018(O&M) 2024:PHHC:009351
Ram v. State of H.P., 1973 (2) SCC 808 andChandrappa and others v.
State of Karnataka, (2007) 4 SCC 415). A Division bench of this Court in the
judgment passed in State of Haryana Vs. Ankit and othersCRM-A No.3 of
2022 decided on 06.07.2023 has held that presumption of innocence further
gets entrenched on the acquittal of accused by the trial Court.
5. In view of the facts and circumstances of the case, this Court finds
that learned counsel for the applicant-appellant has failed to point out any
perversity or illegality in findings recorded by the learned trial Court which
warrants interference by this Court. As such, there is no merit in the present
application and hence, the leave to appeal is denied.
(HARPREET SINGH BRAR)
January 23, 2024 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
Neutral Citation No:=2024:PHHC:009351
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