Punjab-Haryana High Court
Naryan Singh Yadav vs Ram Singh on 22 November, 2024
Neutral Citation No:=2024:PHHC:153730
CRM-A-1366-MA-2017 - 1-.
235 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-1366-MA-2017
Date of Reserve:24.07.2024
Date of Decision:22.11.2024
Sh. Narayan Singh Yadav ...Appellant
Vs.
Sh. Ram Singh ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Sanjeev Kumar Advocate with
Mr. Vikas Barala, Advocate,
Ms. Sweety Chahal, Advocate
for the applicant/appellant.
Mr. Satbir Singh, Advocate
for the respondent.
***
N.S.Shekhawat J.
1. The applicant/appellant has filed the present application under
Section 378 (4) Cr.P.C with a prayer to grant special leave to appeal against the
judgment of acquittal dated 30.03.2017, passed by the Court of Judicial
Magistrate Ist Class, Gurugram, whereby the respondent was ordered to be
acquitted of the notice of the accusation.
2. The brief facts of the case are that the applicant had filed a
complaint under Section 138 of the Negotiable Instruments Act (hereinafter
referred to as the "Act") against the respondent by alleging that the
applicant/complainant had friendly relations with the respondent/accused since
long. The respondent had taken a friendly loan of Rs.5 lacs from the applicant
and in discharge of his part liability, the respondent had issued a cheque bearing
No.049072 dated 01.09.2014 for a sum of Rs.5,00,000/- in favour of the
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applicant. The applicant presented the said cheque for encashment, but the same
was returned on 20.09.2014 with the remarks "Fund Insufficient". Despite the
legal notice dated 02.12.2014, the respondent failed to make the payment of an
amount equal to the cheque amount to the applicant.
3. After the preliminary evidence, the respondent was summoned
under Section 138 of the "Act", to which he pleaded not guilty and claimed
trial.
4. In order to prove the charge, the applicant appeared as CW-1 and
tendered his duly sworn affidavit (Ex.CW/A) in evidence. In his documentary
evidence, applicant has tendered original cheque Ex.C1, return memos
Ex.CW1/2 to Ex.CW1/4, legal notice Ex.CW1/5, postal rececipt Ex.CW1/6,
reply to legal notice Ex.C5. Ram Singh Saini, Advocate, District Court
Gurugram, appeared as CW-2 and tendered his documents as Ex.CW2/A in his
evidence.
5. After the closure of the prosecution evidence, the statement of
respondent was recorded under Section 313 Cr.P.C.,wherein he denied all the
allegations and stated that he had neither taken the loan from the applicant nor
had issued the cheque in question to him. Even the cheque did not bear his
signatures and he did not know anything about the cheque. His firm "Sri
Krishna Building Material" was closed in the year 2010-11. In his defence, the
respondent did not examine any witness.
6. Vide the impugned judgment dated 30.03.2017, passed by the
Court of Judicial Magistrate Ist Class, Gurugram, the respondent was ordered to
be acquitted of the notice of the accusation. Assailing the impugned judgment,
learned counsel for the applicant vehemently argued that the impugned
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judgment was based on mis-appreciation of evidence and the settled law. He
further contends that the Trial Court had completely failed to appreciate that the
respondent had admitted his signatures on the cheque and he did not lead any
evidence in rebuttal. Still further, the respondent could not lead any evidence to
rebut the statutory presumption under Section 139 of the "Act". Once the
execution of the cheque was admitted, then it was for the accused to discharge
the initial burden of proof and to rebut the presumption. He further contended
that the ingredients of the offence under Section 138 of the "Act" were fulfilled
in the present case and the respondent was liable to be acquitted by the Court.
7. On the other hand learned counsel appearing on behalf of the
respondent submitted that the impugned judgment was based on correct
appreciation of evidence of law. The presumption under Section 139 of the
"Act" stood rebut from the evidence led by the prosecution itself.
8. I have heard the rival submissions made by learned counsel for the
parties and perused the case filed carefully.
9. In the present case, no doubt, it has been held by the Trial Court
that the ingredients of the offence under Section 138 of the "Act" with regard to
time frame were fulfilled by the applicant and cheque was duly signed by the
respondent. However, the trial Court had held that the respondent had
succeeded in rebutting the presumption of law, which had arisen in favour of
the applicant.
10. In the present case, the Trial Court had held in the impugned
judgment that the applicant had failed to show from where he had generated a
huge amount of Rs.5 lacs. Even no ITR was placed on record to prove his
income. He further stated that the applicant had taken some money from his
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brother and the some of the amount was withdrawn from the account of the
applicant. However, no such statement was placed on record. Still further, with
regard to his income and source of income also, his stand was contradictory.
11. This Court as well as the Hon'ble Supreme Court have held in
number of judgments that the complainant has no legal obligation in all cases
under Section 138 of the "Act" to prove his financial capacity. However, in
cases, where the complainant states that he had lent money to accused in cash
and that the accused had issued the cheque in discharge of his liability and if the
accused is challenging the financial capacity of the complainant, to advance
money, and despite the legal presumption under Section 139 of the "Act", the
complainant has an obligation to prove his financial capacity as well as source
of income. The complainant can never be burdened with proving the fact of his
financial capacity or source of money in the beginning and the obligation arises
only with his capacity or capability to advance the money challenged by the
accused. Applying the said principle of law, the applicant is stated to have
advanced a formal loan in cash, however, the transaction of loan is not
evidenced by the any documentary evidence or the reliable witness. Thus, it is
apparent that the respondent had been successfully in rebutting the presumption
under Section 139 of the "Act".
12. It has been held by the Hon'ble Supreme Court in the matter of
"Bhaskarrao and others Vs. State of Maharashtra", 2018 AIR (Supreme
Court) 2222; 2018 (5) RCR (Criminal) 228 as follows:-
"14. As the trial court and High Court, having appreciated the
evidence on record, has come to diametrically opposite
conclusions, mandating herein to observe certain witness
statements which may have an important bearing in this case. In
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the processes of appreciating the evidence at the appellate stage,
we need to keep in mind the views of this court as expressed in
Tota Singh and Anr. v. State of Punjab, 1987(2) RCR (Criminal)
35 : 1987 CriLJ 974 -
"The High Court has not found in its judgment that the reasons
given by the learned Sessions Judge for discarding the testimony of
PW2 and PW6 were either unreasonable or perverse. What the
High Court has done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal merely on the
ground that as a result of such reappreciation, the High Court was
inclined to reach a conclusion different from the one recorded by
the learned Sessions Judge. This Court has repeatedly pointed out
that the mere fact that the Appellate Court is inclined on a
reappreciation of the evidence to reach a conclusion which is at
variance with the one recorded in the order of acquittal passed by
the Court below will not constitute a valid and sufficient ground
for setting aside the acquittal. The jurisdiction of the Appellate
Court in dealing with an appeal against an order of acquittal is
circumscribed by the limitation that no interference is to be made
with the order of acquittal unless the approach made by the lower
Court to the consideration of the evidence in the case is vitiated by
some manifest illegality or the conclusion recorded by the Court
below is such which could not have been possibly arrived at by any
court acting reasonably and judiciously and is, therefore, liable to
be characterized as perverse. Where two views are possible on an
appraisal of the evidence adduced in the case and the court below
has taken a view which is plausible one, the Appellate Court
cannot legally interfere with an order of acquittal even if it is of
the opinion that the view taken by the Court below on its
consideration of the evidence is erroneous."
15. In Ramesh Babulal Doshi v. State of Gujarat, 1997(3) RCR
(Criminal) 62 : 1996 CriLJ 2867, this Court observed:
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"This Court has repeatedly laid down that the mere fact that a view
other than the one taken by the trial Court can be legitimately
arrived at by the appellate Court on reappraisal of the evidence
cannot constitute a valid and sufficient ground to interfere with an
order of acquittal unless it comes to the conclusion that the entire
approach of the trial Court in dealing with the evidence was
patently illegal or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an acquittal the
appellate Court is first required to seek an answer to the question
whether the findings of the trial Court are palpably wrong,
manifestly erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the negative the
order of acquittal is not to be disturbed."
13. Keeping in view the above referred discussion and the law laid
down by the Hon'ble Supreme Court, it can be safely concluded that the
impugned judgment passed by the Trial Court is based on sound reasons and
there does not seem to be any illegality or perversity in the appreciation of the
evidence by the trial Court.
14. Sequally, the application for leave to appeal sans merit and is
accordingly ordered to be dismissed.
(N.S.SHEKHAWAT)
22.11.2024 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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