Rajasthan High Court - Jodhpur

Shahnaj Banu vs Usman Gani (2025:Rj-Jd:10986) on 24 February, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:10986]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Crml Leave To Appeal No. 113/2023

Shahnaj Banu W/o Mohammad Iqbal, Aged About 50 Years, R/o
Near Pareek Hostel Gul Ali Nagari Bhilwara
                                                                       ----Appellant
                                        Versus
Usman Gani S/o Mohammad Yusuf Chhipa, R/o Near Pareek
Hostel Gula Li Nagari Bhilwara
                                                                     ----Respondent


For Appellant(s)              :     Mr. Parwat Singh Rathore
For Respondent(s)             :     Mr. RS Chundawat



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

24/02/2025

Instant criminal leave to appeal has been filed by the

appellant-complainant under Section 378(4) Cr.P.C. against the

acquittal of the accused-respondent from offence under Section

138 of NI Act vide judgment dated 14.02.2023 passed by learned

Special Judicial Magistrate, NI Act No.2, Bhilwara in Regular Cr.

Case No.5771/2020.

Brief facts of the case are that a complaint under Section

138 of NI Act was filed by the appellant-complainant against the

accused-respondent inter-alia alleging therein that she lent

Rs.2,70,000/- to the accused-respondent and in lieu thereof, the

accused-respondent gave a cheque of Indian State Bank, Branch

Rajendra Nagar, Bhilwara bearing No.665549 dated 18.10.2020

amounting Rs.2,70,000/-. On presentation, the cheque was

dishonoured with the remark of account blocked. Thereafter, the

appellant sent a legal notice to the accused-respondent

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No.28.10.2020, which was duly served upon him. Despite service

of legal notice, the accused-respondent did not pay the amount.

Hence, the appellant filed complaint under Section 138 of NI Act

before the trial court.

On the complaint, the trial court took cognizance against the

accused-respondent under Section 138 of NI Act and thereafter

framed charge against him.

In support of the complaint, the appellant examined herself

as PW-1 and exhibited various documents. Thereafter, statement

of accused respondent was recorded under section 313 Cr.P.C. IN

defence, the accused-respondent examined three witnesses and

exhibited certain documents.

Upon conclusion of the trial, the learned trial court vide

impugned judgment dated 14.02.2023 acquitted the accused-

respondent from offence under Section 138 of NI Act. Hence, this

criminal leave to appeal.

Learned counsel for the appellant-complainant submits that

the learned trial court has committed grave error in acquitting the

accused-respondent for offence under Section 138 of NI Act. While

passing the impugned judgment, the learned trial court did not

consider the evidence and other aspects of the matter in its right

perspective. Counsel submits that the appellant gave

Rs.2,70,000/- to the accused-respondent during lock-down and in

lieu thereof, the accused-respondent gave a cheque of the same

amount as well as also mortgaged his two shops by executing a

mortgage deed, but neither the possession of the said shops was

not handed over to the appellant, nor he paid rent of the said

shops the appellant and this fact has been proved by the appellant

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by producing cogent evidence. Counsel submits that the learned

trial court has wrongly come to the conclusion that the accused-

respondent has already paid the amount of Rs.2,70,000/- to the

appellant. In this regard, counsel submits that the accused-

respondent has failed to prove the fact that as to when and on

which date, he returned the amount to the appellant. The

appellant by producing oral and documentary evidence has proved

the burden that the cheque in question was given to her by the

accused-respondent against the legal liability of borrowed money.

But the learned trial court without appreciating the evidence in

proper manner, acquitted the accused-respondent. Thus, the

impugned judgment being per se illegal deserves to be quashed

and set aside and the accused-respondent No.2 ought to have

been convicted and sentenced for offence under Section 138 of NI

Act.

Learned counsel for respondent has vehemently opposed the

prayer made by the counsel for the petitioner and submitted that

the learned trial court has considered each and every aspect of

the matter and has rightly acquitted the accused-respondent. The

order of acquittal is just and proper and therefore, no interference

is required.

Heard learned counsel for the parties and perused the

evidence of the prosecution as well as defence and the judgment

passed by the trial.

On perusal of the impugned judgment, it appears that the

learned trial court while passing the impugned judgment has

considered each and every aspect of the matter and also

considered the evidence produced before it in its right perspective.

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There are major contradictions, omissions & improvements in the

statements of the witnesses. The prosecution has failed to prove

its case against the accused-respondent beyond all reasonable

doubts and thus, the trial court has rightly acquitted the accused-

respondent from offence under Section 138 of NI Act.

In the case of 'Mrinal Das & others v. The State of

Tripura, :2011(9) SCC 479,' decided on September 5, 2011, the

Hon'ble Supreme Court, after looking into many earlier

judgments, has laid down parameters, in which interference can

be made in a judgment of acquittal, by observing as under:

"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons",for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc.,the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Similarly, in the case of State of Rajasthan v. Shera Ram

alias Vishnu Dutta, reported (2012) 1 SCC 602,' the Hon'ble

Supreme Court has observed as under:--

"A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal."

There is a very thin but a fine distinction between an appeal

against conviction on the one hand and acquittal on the other. The

preponderance of judicial opinion is that there is no substantial

difference between an appeal against acquittal except that while

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dealing with an appeal against acquittal the Court keeps in view

the position that the presumption of innocence in favour of the

accused has been fortified by his acquittal and if the view adopted

by the trial Court is a reasonable one and the conclusion reached

by it had grounds well set out on the materials on record, the

acquittal may not be interfered with.

In the light of aforesaid discussion, the appellant has failed