Punjab-Haryana High Court
Sunil Arora vs Harjit Singh @ Kaka on 11 March, 2024
Neutral Citation No:=2024:PHHC:037932
2024:PHHC:037932
CRM-A-1179-MA-2015 1
227 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-1179-MA-2015
Date of Decision: 11.03.2024
Sunil Arora
...Applicant
Versus
Harjit Singh @ Kaka
...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Varun Sharma, Advocate
for the applicant
Mr. Sahil Bansal, Advocate for
Mr. Amit Dhawan, Advocate
for the respondent
***
Harpreet Singh Brar, J. (Oral)
1. The present application is preferred under Section 378(4) of the
Cr.P.C. against the judgment of acquittal dated 09.02.2015 passed by learned
Judicial Magistrate 1st Class, Jalandhar, in a criminal complaint case, bearing no.
376/2/2011, filed under section 138 of The Negotiable Instruments Act, 1881
(hereinafter 'NI Act' for brevity).
2. Briefly, the facts are that the applicant-complainant entered into an
agreement to sell with the respondent-accused to purchase a house situated at
Chak Hussaina, Lamba Pind, Tehsil and District Jalandhar, The respondent-
accused received a sum of Rs. 11,00,000/- as sale consideration. However, the
respondent-accused failed to get the sale deed executed. As a result, the applicant-
accused demanded his money back. Upon repeated requests, the respondent-
accused, in discharge of his legally enforceable debt, issued a cheque, bearing no.
013430 dated 24.01.2011, for an amount of Rs. 4,00,000/-, drawn on Central Bank
of India, Industrial Estate, Jalandhar, as part payment, in favour of the applicant.
Thereafter, the applicant deposited the above said cheque with his bank for
encashment of the same. However, vide memo dated 27.01.2011, the above said
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cheque was returned unpaid with the remark,"Opening Balance Insufficient".
Subsequently, a legal notice dated 02.02.2011 was served upon the respondent
calling upon him to make the payment. Despite the legal notice, the respondent
failed to pay the cheque amount within the stipulated period of 15 days. Hence,
the complaint before the Magistrate.
3. Having heard the learned counsel for the parties and after perusing
the record of the case with their able assistance, it transpires that the genesis of the
dispute lies in one agreement to sell that was allegedly executed between the
applicant and the respondent. But the agreement has never been produced on
record by the applicant-complainant and no sufficient justification was provided
for not doing so. Further, as per the records of the Trial Court, the applicant has
not specified the date of the said agreement nor has he alleged that it is in
possession of the respondent-accused. In these circumstances, the factum of
transaction regarding the sale of property cannot be established.
4. Furthermore, HC Manjit Ram (DW-1) had produced on record
certified copy of affidavit (EX. D2) given by the respondent, wherein it is
mentioned that the respondent lost his blank signed cheques along with certain
land documents on 22.12.2005, which were contained in a bag. On the basis of the
original affidavit, one DDR was registered. However, the original affidavit and the
DDR was destroyed under Rule 22.51 of the Punjab Police Rules, 1934, which
states that the daily diaries of a Police Station can be destroyed 2 years after the
date of last entry. Lastly, the applicant failed to prove the source from where he
has arranged the said amount. The statement of the applicant that he has received
the alleged amount from his father, who in turn received it from his father, cannot
be considered to be reliable to prove the financial capacity of the complainant to
advance the said sum as no evidence has been adduced in this regard.
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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 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. As such, there is no merit in the present
application and hence, the leave to appeal is denied.
7. Pending miscellaneous application(s), if any, shall also stand disposed
of.
(HARPREET SINGH BRAR)
JUDGE
14.03.2024
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2024:PHHC:037932
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