Rajasthan High Court - Jodhpur

Mahindra @ Mahindra Financial Service ... vs Shrawan Ram (2025:Rj-Jd:14178) on 17 March, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:14178]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Crml Leave To Appeal No. 305/2022

Mahindra & Mahindra Financial Service Limited, 101-102 S.s.
Tower Near Akhaliya Choraha Chopasani Road Jodhpur Through
Power Of Attorney Holder Shri Sabir Hussain S/o Shri Hamid
Hussain Aged About 40 Years R/o 19 N.k. Tower Chopasani
Housing Board Jodhpur Raj.
                                                                      ----Appellant
                                    Versus
1.       Shrawan Ram S/o Sh. Gangaram, B/c Meghwal R/o
         Kantiya Tehsil Nawa Dist. Nagaur Raj.
2.       State Of Rajasthan, Through Pp
                                                                   ----Respondents


For Appellant(s)          :     Mr. Gaurav Khatri
For Respondent(s)         :     Mr. Lalit Kishore Sen, PP
                                Mr. ML Balai



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

17/03/2025

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 No.1 from offence under

Section 138 of NI Act vide judgment dated 10.02.2022 passed by

learned Additional Civil Judge & Metropolitan Magistrate No.8,

Jodhpur Metro in Cr. Original Case No.188/2010.

Brief facts of the case are that a complaint under Section

138 of NI Act was submitted by the complainant against the

accused-respondent inter alia alleging that the accused-

respondent took loan of Rs.2,25,000/- with interest of Rs.66,012/-

on it, total Rs.2,91,012/-, for purchase of Mahindra Tractor

[2025:RJ-JD:14178] (2 of 5) [CRLLA-305/2022]

through a valid agreement. On paying some installments, an

amount of Rs.1,11,664/- was due against the accused-respondent

and for payment of the said amount, the accused-respondent

issued four cheques to the complainant including cheque

No.281906 of SBBJ Bank of Rs.24,251/- dated 04.01.2008. On

presentation, the aforesaid cheque was returned with an

endorsement of "account closed". Thereafter, the appellant sent a

legal notice to the accused-respondent, 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 power of attorney holder of

the appellant-company examined himself as PW-1 and exhibited

various documents. Thereafter, statement of accused respondent

was recorded under section 313 Cr.P.C.

Upon conclusion of the trial, the learned trial court vide

impugned judgment dated 10.02.2022 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 fact that the signature on the cheque was not denied

by the accused-respondent and therefore, offence under 138 of NI

[2025:RJ-JD:14178] (3 of 5) [CRLLA-305/2022]

Act is made out against the accused-respondent. The appellant by

producing oral and documentary evidence has proved the burden

that the cheque in question was given to it 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 ought to have been convicted

and sentenced for offence under Section 138 of NI Act.

Learned counsel for accused-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

appellant/complainant did not produce the loan agreement by

which the accused-respondent took loan from the appellant

Company for purchase of a Mahindra Tractor. The appellant

Company prima facie also failed to prove that how much loan was

sanctioned in favour of the accused-respondent on what rate of

interest. The appellant has also failed to show that on what terms

and conditions, the loan agreement was executed between the

appellant-company and the accused-respondent. There are

material contradictions, omissions and improvements in the

[2025:RJ-JD:14178] (4 of 5) [CRLLA-305/2022]

statements of the witnesses to prove the fact that the cheque in

dispute was given by the accused-respondent to the appellant for

repayment of due loan amount liability against the appellant. From

the document i.e. bank statement (Ex-P/3), it is evident that the

accused-respondent repaid the loan amount in installments time

to time. The appellant Company did not produce any oral as well

as documentary evidence regarding due amount of loan against

the accused-respondent.

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.

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.

[2025:RJ-JD:14178] (5 of 5) [CRLLA-305/2022]

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

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

to show any error of law or on facts on the basis of which