Punjab-Haryana High Court
Surender Saini vs Vijay Kumar on 8 January, 2024
Neutral Citation No:=2024:PHHC:003073
2024:PHHC:003073
CRM-A-1929-MA-2017 1
219 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-1929-MA-2017
Date of decision: 08.01.2024
SURENDER SAINI
...APPLICANT/APPELLANT
V/S
VIJAY KUMAR
...RESPONDENT
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Sudesh Saini, Advocate and
Mr. Sandeep Punchhi, Advocate for the applicant/appellant.
****
HARPREET SINGH BRAR J. (ORAL)
1. This instant application under Section 378(4) Cr.P.C. is preferred
against the order of acquittal dated 19.07.2017 passed by learned Judicial
Magistrate Ist Class, Sirsa vide which, the present respondent has been
acquitted in criminal complaint No.89-2 of 2015 dated 07.12.2015 filed under
Section 138 of Negotiable Instruments Act, 1881 (herein after referred as NI
Act).
2. The minimal facts as necessary for disposing this application are
that respondent took a friendly loan of Rs.1,00,000/- from the applicant with a
promise to repay the same. In discharge of his legal liability, respondent issued
a cheque of Rs.1,00,000/- bearing No.002021 dated 18.08.2015 in favour of the
applicant. On presentation of the said cheque to the bank, the same was
returned with remarks 'Funds Insufficient' vide memo dated 05.11.2015.
Thereupon, a demand notice dated 16.11.2015 was sent to the respondent but
he did not make the necessary payment within the stipulated statutory period.
Hence, the aforementioned complaint by the applicant.
1 of 3
Neutral Citation No:=2024:PHHC:003073
2024:PHHC:003073
3. Having heard the learned counsel for the applicant and after
perusing the record with his able assistance, it is clear that the applicant has
been unable to prove the alleged advancement of loan to the respondent. He
has not placed a single document on record before the learned trial Court
proving the alleged transaction. Moreover, there was no transaction above the
amount of Rs.3000/- in the bank account of the applicant for the concerned
period. The applicant has also failed to prove his financial capacity to lend the
said amount to the respondent as friendly loan. Further, it clearly shows from
the cross-examination of CW5 Tarun Bansal that he had received two blank
cheques of Rs.1,00,000/- each as security from the respondent in lieu of a sale
agreement between them to which the present applicant was a witness. The
cheque in question appears to have been misused to file the aforementioned
complaint. Reliance has been placed upon the case titled Krishna Janardhan
Bhat vs. Dattatraya G. Hegde, 2008 (1) RCR (Civil) 498, in appreciating a
convincing rebuttal of the presumption under Section 139 of the N.I Act in the
present case.
4. Consequently, the basic ingredient of Section 138 of N.I. Act, i.e.,
the cheque must be 'for discharge of some legally enforceable debt' remains
unproved by the applicant. The above-mentioned order of acquittal passed by
the learned trial Court stands validated.
5. 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
2 of 3
Neutral Citation No:=2024:PHHC:003073
2024:PHHC:003073
witnesses. (See H.D. Sundara and others Vs. State of Karnataka, Criminal
Appeal No.247 of 2011 decided on 26.09.2023; Kali Ram v. State of H.P.,
1973 (2) SCC 808 and Chandrappa 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 others CRM-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.
6. 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 08, 2024 JUDGE
manisha/Ajay
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
Neutral Citation No:=2024:PHHC:003073
3 of 3
