Rajasthan High Court - Jodhpur
Kishan Lal vs State And Anr on 17 May, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 466/1999
Kishan Lal
----Petitioner
Versus
State And Anr
----Respondent
For Petitioner(s) : Mr. Ashok Upadhyay
For Respondent(s) : Mr. Mukesh Trivedi PP
Mr. Dharamveer Choudhary
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
17/05/2022
1. This criminal revision petition under Section 397 read with
Section 401 Cr.P.C. has been preferred against the judgment
dated 15.04.1999 passed by the learned Additional Sessions
Judge No.2, Bikaner ('lower appellate court') in Appeal No.2/98,
while allowing the appeal filed by accused-Alok, the judgment
dated 02.12.1997 passed by the learned Civil Judge (Junior
Division) & Judicial Magistrate First Class, Bikaner ('trial court') in
Private Complaint No.70/92 (filed by complainant-Kishan Lal) was
quashed and set aside; the learned trial court vide its judgment,
held accused-Alok guilty under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the Act') and
sentenced him to undergo one year's simple imprisonment and a
fine of Rs.5,000/-, in default of payment of which, the accused
was to undergo further two months imprisonment.
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2. Learned counsel for the complainant/petitioner submits that
owing to the petitioner's acquaintance with the accused, he
borrowed a sum of Rs.15,000/- as a loan from the
complainant/petitioner for his business needs. Learned counsel
further submits that after some time, upon being demanded the
said loan amount by the complainant/petitioner, the accused gave
him a cheque bearing No.350922 dated 05.07.1991 drawing on
the erstwhile State Bank of Bikaner & Jaipur, Branch-Public Park,
Bikaner, for a sum of Rs.5,000/-; upon the said cheque being
presented before the concerned Branch of the Bank on
06.07.1991, the cheque was returned by the Bank with the
negative endorsement, on count of insufficiency of funds in the
bank account of the accused, which clearly indicates that the
cheque in question was dishonoured.
2.1 Learned counsel also submits that thereupon, a notice,
through registered AD post, was sent by the
complainant/petitioner to the accused on 17.07.1991, requiring
him to pay the cheque amount, which was duly received by the
accused, but despite that, the amount was not paid by the
accused; hence, the complainant/petitioner submitted the
aforementioned private complainant before the learned court
below, seeking redress.
2.2 Learned counsel further submits that thereafter, on the basis
of the statement rendered by the complainant/petitioner under
Section 200 Cr.P.C., vide order dated 14.07.1992, the learned
court below took cognizance against the accused under Section
138 of the Act; on 09.02.1996, the charge against him was
verbally explained by the court to the accused, but he had denied
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such charge and claimed trial, and accordingly, the trial
commenced.
2.3 Learned counsel further submits that the learned trial court,
after hearing both the parties and examining the overall facts and
circumstances of the case, passed the aforementioned judgment
dated 02.12.1997, holding the accused guilty of the offence under
Section 138 of the Act and sentenced him appropriately, as
mentioned above.
2.4 Learned counsel also submits that against the
aforementioned judgment of the learned trial court, the accused
had preferred the aforementioned appeal before the learned lower
appellate court, which however, was allowed, vide the impugned
judgment dated 15.04.1999, while quashing and setting aside the
judgment dated 02.12.1997 passed by the learned trial court in
favour of the complainant/petitioner and acquitted the accused
from the offence under the Act; hence, assailing the said
impugned judgment of the learned lower appellate court, the
complainant/petitioner has preferred the present criminal revision
petition.
2.5 Learned counsel also submits that despite the factum of the
amount in question being a legally enforceable debt, which was
also substantiated and strengthened by the well reasoned
speaking judgment passed by the learned trial court, the learned
lower appellate court erred in not accepting the plea in regard
thereto, as advanced by the complainant/petitioner.
2.6 Learned counsel further submits that the learned lower
appellate court, vide the impugned judgment, also erred in
holding that the cognizance could not have been taken by the
learned court below, before 17.08.1992, but the same was taken
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much prior thereto; in regard thereto, learned counsel submits
that the cognizance was rightly taken by the learned trial court,
after being satisfied that the debt in question was a legally
enforceable debt, coupled with the fact that the accused prima
facie defaulted in making the necessary payment to the
complainant/petitioner.
2.7 Learned counsel also submits that the learned lower
appellate court further erred in holding that the accused was not
given an adequate opportunity of rendering evidence in regard to
prove as to which cheque was given by him to the
complainant/petitioner against repayment of the loan amount, and
which cheque was dishonoured, and further due opportunity of
cross-examination was also not afforded to the accused; instead,
as per learned counsel, such an opportunity was given to the
accused, which is apparent on the face of the record. Moreover, as
per learned counsel, the accused himself did not wish to produce
any cogent and sufficient defence.
2.8 Learned counsel thus submits that in the aforementioned
backdrop, the impugned judgment dated 15.04.1999 passed by
the learned lower appellate court deserves to be set aside, while
restoring the judgment dated 02.12.1997 passed by the learned
trial court.
3. On the other hand, learned Public Prosecutor as well as
learned counsel for the accused-respondent No.2 oppose the
aforesaid submissions made on behalf of the petitioner.
4. Learned counsel for the accused-respondent No.2 submits
that the judgment dated 02.12.1997 passed by the learned trial
court was full of deficiencies - both on facts and in law - and the
same were rightly rectified and corrected by the impugned
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judgment dated 15.04.1999 passed by the learned lower appellate
court, and thus, the impugned judgment, which clearly meet the
ends of justice, may not be interfered with by this Court, more
particularly, when the learned lower appellate court has, in the
impugned judgment, given cogent and reasoned findings.
5. After hearing learned counsel for the parties as well as
perusing the record of the case, this Court finds that the learned
lower appellate court, while passing the impugned judgment in
favour of the accused-respondent No.2 has taken into due
consideration the overall facts and circumstances of the case as
well as duly appreciated the evidence and material available on
record of the case.
6. Thus, in the peculiar facts and circumstances of the case,
this Court does not find any ground to be made out, so as to
warrant any interference by this Court in the well reasoned
speaking judgment impugned herein passed by the learned lower
appellate court.
7. Consequently, the present petition is dismissed. All pending
applications also stand disposed of. Record of the learned court
below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
43-SKant/-
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