Punjab-Haryana High Court
Baljit Singh Through Power Of Attorney ... vs Rajender Singh on 6 March, 2024
Neutral Citation No:=2024:PHHC:035388
2024:PHHC:035388
CRM-A-2080-MA-2015 & 2 connected matters 1
225 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-2080-MA-2015(O&M)
Date of Decision: 06.03.2024
Baljit Singh ...Applicant-Appellant
Versus
Rajinder Singh ...Respondent
CRM-A-65-MA-2016 (O&M)
Date of Decision: 06.03.2024
Baljit Singh ...Applicant-Appellant
Versus
Rajinder Singh ...Respondent
CRM-A-83-MA-2016 (O&M)
Date of Decision: 06.03.2024
Baljit Singh ...Applicant-Appellant
Versus
Rajinder Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. R.S. Sangwan, Advocate
for the applicant-appellant
***
Harpreet Singh Brar, J. (Oral)
CRM-42362-2015 in CRM-A-2080-MA-2015
This is an application under Section 5 of the Limitation Act, 1963
seeking condonation of a delay of 31 days in filing the instant application under
Section 378(4) of the Cr.P.C.
For the reasons mentioned in the application, the same is allowed
and the delay of 20 days in filing the said application is condoned.
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CRM-A-2080-MA-2015, CRM-A-65-MA-2016 and CRM-A-83-MA-2016
1. This order shall dispose of all three of the above-mentioned
petitions as they arise from similar factual matrix. However, for the sake of
brevity, the facts are taken from CRM-A-2080-MA-2015.
2. The present application is preferred under Section 378(4) of the
Cr.P.C. against the judgment of acquittal dated 16.09.2015 passed by learned
Judicial Magistrate Ist Class, Bhiwani in criminal complaint No. 80-2 dated
18.10.2011 filed under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter 'NI Act').
3. Briefly, the facts are that the respondent-accused borrowed a sum
of Rs. 33,00,000/- from the applicant-complainant for purchase of some
agricultural land in Ganganagar with a promise to repay the same as and when
demanded by the petitioner. On asking of the petitioner, in order to discharge his
liability, the respondent issued three cheques in favour of the complainant as
detailed below, which was dishonoured on their presentation for encashment:
Sr. Cheque no. Dated Amount Dishonoured vide Remarks
No. memo dated
1. 022816 20.06.2011 Rs.10,00,000/- 26.09.2011 Insufficient funds
2. 0022817 20.09.2011 Rs.12,00,000/- 22.09.2011 Insufficient funds
3. 0022818 20.09.2011 Rs.11,00,000/- 22.09.2011 Insufficient funds
Thereafter, a legal notice dated 29.09.2011 to call upon him to
make the payment was served on the respondent. However, the respondent
failed to make the requisite payment and the present complaint was filed, in
which he was acquitted vide the impugned judgment dated 16.09.2015.
3. Having heard the learned counsel for the applicant and after
perusing the record of the case with his able assistance, it transpires that after
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receiving the legal notice, the respondent-accused realised that the disputed
cheques were missing from his chequebook. On receiving the instant compliant,
the learned trial Court ordered for an enquiry under Section 202 Cr.P.C., which
was conducted by ASI Om Parkash, In-charge, Police Post Mundhai. The report
submitted by SHO Police Station Sadar Bhiwani concluded the allegation of
theft and forgery to be true. Moreover, DW3- V.B. Kashyap, Handwriting and
Fingerprint Expert has categorically stated that the signature on the disputed
cheques and the admitted signatures, ascertained from the signature of the
respondent on his application of surrender and bail as well as his statement in
Court dated 21.02.2015, have not been written by the same person. The
respondent has consistently denied his signature in his reply to the legal notice
as well as his statement recorded under Section 313 Cr.P.C. In fact, one of the
disputed cheques bearing no. 002817 dated 20.09.2011 was also dishonoured on
the grounds of difference in signature.
4. Further, the applicant-complianant served in the Indian Army and
based on his salary, he could not have gathered the alleged loan amount in 15
years. In his cross-examination, CW2-complainant has stated that he had
borrowed the said amount from his maternal uncle namely Chand Ram.
However, this factum does not find mention in the complaint or the affidavit
tendered by him. As a matter of fact, Chand Ram has not been examined by the
petitioner-complainant to prove his financial capacity. As such, the complainant
respondent has failed to prove the alleged legally recoverable debt and his
financial capacity to advance the same. Therefore, the respondent-accused has
been successful in rebutting the presumption under Section 139 of the NI Act.
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
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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 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 passed 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.
7. Accordingly, the leave to appeal in all the above-mentioned
application is denied. Pending miscellaneous application(s), if any, shall also
stand disposed of.
(HARPREET SINGH BRAR)
JUDGE
06.03.2024
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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