Punjab-Haryana High Court
Ajay Sharma vs Subhash Chand on 20 March, 2024
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
Neutral Citation No:=2024:PHHC:042489
CRM-A-1455-MA-2014 Neutral Citation No. 2024:PHHC:042489
253 IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRM-A-1455-MA-2014 (O&M)
Date of Decision: 20.03.2024
Ajay Sharma ......... Applicant/appellant
Versus
Subhash Chand ........Respondent
CORAM: HON'BLE MR.JUSTICE MAHABIR SINGH SINDHU
Present: None for the applicant-appellant.
MAHABIR SINGH SINDHU. J.
This is an application filed under Section 378(4) of Code of
Criminal Procedure, 1973 for seeking leave to appeal against the judgment
dated 14.07.2014, passed by Judicial Magistrate First Class, Gurgaon (for short
"JMIC") whereby respondent was acquitted in complaint under Section 138 of
Negotiable Instruments Act, 1881 titled as "Ajay Sharma Versus Subhash
Chand".
2. While acquitting the respondent, learned JMIC in para 10 of the
judgment, observed as under:-
"10. It is pertinent to mention here that it has been proved upon
the case file through admission of complainant Ajay in his cross
examination itself that the cheque in dispute was a security cheque
given in advance to the complainant by the accused. Hence it has
been a settled proposition of law as far as security cheque is the
acknowledgement of liability on part of the drawer and the cheque
holder may use the security cheque as an alternative mode
discharging his/its liability. But the burden to prove the fact that at
the time of using the security cheque there was a legally
enforceable debt or liability exist is upon the complainant. Further
the accused always has a right to produce evidence to rebut the
factum of any existence of legal debt or liability at the relevant
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CRM-A-1455-MA-2014 Neutral Citation No. 2024:PHHC:042489
point of time. As far as the case in hand is concerned it has come
upon the case file that earlier also the complainant filed two
complaints against the accused in 2011 and therein also accused
took the defence that the complainant has taken 12 blank security
cheques from him and has been misusing those cheques. Moreover,
an application was made to the Branch Manager of Indian
Overseas bank dated 28.10.2011 Ex.D-5 as produced upon the
case file also contains the cheque No. 202439 i.e. the cheque in
dispute in the list of cheques, the payment of which was stopped by
the accused stating therein that he has already made the due
payment to the complainant and despite that the complainant did
not return back the security cheques and hence he might misuse
them in the future. Hence it has become clear that the payment
regarding cheque in dispute was stopped by the accused vide letter
dated 28.10.2011. Meaning thereby the cheque in dispute has been
in possession of the complainant even before 28.10.2011. Hence in
such circumstances wherein litigation between the parties has
already been pending, the probability of giving of loan to the
accused by the complainant is very less. Moreover, even the date
and time of the loan alleged to be given by the complainant to the
accused has not been mentioned in the complaint itself. These
circumstances made it clear that in fact no such friendly loan was
advanced by the complainant to the accused against which the
cheque in dispute is alleged to be issued rather the cheque in
dispute was a security cheque which was misused by the
complainant and present complaint has been filed. On the basis of
discussion made above I am of the considered view that the
accused has been able to rebut the presumption arose in favour of
the complainant and hence the accused is hereby acquitted of the
charges leveled against him. His bail bonds and security bonds
stand discharged. File be consigned to the record room after due
compliance."
3. Since no one is appearing on behalf of the applicant-appellant,
therefore, there is no option, except to dismiss the present application for non-
prosecution.
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4. Ordered accordingly.
5. Pending criminal misc. application(s), if any, shall also stand
disposed off.
20.03.2024 (MAHABIR SINGH SINDHU)
SN JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable: Yes/No
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