Mohd. Usman vs State Of Uttarakhand And Another
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Uttarakhand High Court

Mohd. Usman vs State Of Uttarakhand And Another on 21 May, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL
            Criminal Appeal No.215 of 2011
Mohd. Usman                                     ..... Appellant
                                Vs.
State of Uttarakhand and another           .....Respondents

Presence:
     Mr. Mohd. Azim, Advocate for the appellant/
     complainant.
     Mr. K.S. Bohra, Deputy Advocate General for the
     State of Uttarakhand.

Hon'ble Pankaj Purohit, J. (Oral)

This is an appeal preferred by the appellant/ complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'Cr.P.C.') against the judgment and order dated 01.07.2011 passed by learned Sessions Judge, Champawat in Criminal Appeal No.17 of 2010 Smt. Urmila Bora Vs. Mohd. Usman and Another, whereby, the said Court had acquitted the respondent No.2-Smt. Urmila Bora for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as 'the Act').

2. The brief facts of the case are that the appellant/complainant filed complaint under Section 138 of the Act, before the Court of Judicial Magistrate, Tanakpur, District Champawat, with the averments that the complainant had provided the articles (Match Boxes) worth Rs.67,683.20/- on 15.06.2006, 20.06.2006, 21.06.2006 and 28.06.2006, by way of 04 Bill Nos. bearing Nos. 135, 138, 139 and 141. For the aforesaid payment, the accused/respondent No.2 issued a cheque amounting to Rs.65,000/- dated 17.11.2006 being cheque No.824762 payable at Bank

of Baroda, Branch Tanakpur, whereas the remaining amount was promised to be given in cash.

3. The complainant deposited the said cheque on 28.03.2007 in his Bank for payment, however, the said cheque was returned by the Banker to the complainant with the remarks that the accused- respondent No.2 did not have sufficient money in her account. The complainant, then, sent a registered notice on 16.04.2007 to the accused- respondent No.2 and requested her to make the payment. The said notice was received by the accused-respondent No.2 on 18.04.2007, but, even then a payment of cheque was not made. Hence, the complaint was accordingly filed under Section 138 of the Act.

4. The Court took cognizance of the complaint, summoned the accused in the Court and recorded the statement of the accused, wherein, she stated that the case was proceeded falsely against her and she claimed to be tried.

5. In oral evidence, the complainant got himself examined as PW1, whereas, Madan Mohan Joshi, Clerk of Bank of Baroda, Branch Tanakpur was examined as PW2 and in documentary evidence, besides cheque No.824762, other relevant documents were produced. Thereafter, the statement of accused-respondent No.2 was recorded under Section 313 of Cr.P.C., in which, she stating the case to be found proceeded falsely against her and pleaded to give evidence in her defence, however, no evidence was led by her.

6. The Trial Court, after hearing the parties, found the accused-respondent No.2 guilty for the

offence punishable under Section 138 of the Act and sentenced her to undergo six months' rigorous imprisonment with fine of Rs.1,000/- and in default of payment of fine, 15 days' additional simple imprisonment was also ordered. At the same time, a compensation to the tune of Rs.70,000/- was also imposed against accused-respondent No.2.

7. Feeling aggrieved by the aforesaid judgment, the accused-respondent No.2 preferred an appeal before learned Sessions Judge, Champawat, which was registered as Criminal Appeal No.17 of 2010.

8. Before the Appellate Court, the evidence was re-examined and after hearing the parties and careful examination of the records, learned Sessions Judge, Champawat, by way of impugned judgment dated 01.07.2011 has allowed the appeal and set aside the judgment passed by the Trial Court dated 26.07.2010 and acquitted the accused-respondent No.2 for the offence punishable under Section 138 of the Act. Hence, the appellant/complainant has come up before this Court.

9. I have heard learned counsel for the parties and carefully gone through the documents available on record. In this matter, an amount of Rs.65,000/- was alleged to be paid by accused-respondent No.2 to the complainant in lieu of purchase of certain articles (match boxes), for which the cheque amounting to Rs.65,000/- was issued by the accused-respondent No.2 to the complainant. When the said cheque was produced in the Bank, the same was dishonoured on account of insufficiency of the fund.

10. In this regard, it needs to be mentioned that for purchasing the said goods, 04 invoices being invoice No.135, 138, 139 and 141 were issued, however, there were signatures of no one on the column meant for 'Customer signature'. Hence, the Appellate Court came to the conclusion that mere mentioning the name of accused on the bills that the goods were sold to the accused is not reliable.

11. So far as the issuance of cheque towards payments goods is concerned, accused-respondent No.2 has stated in reply to question No.1 that she did not have any transaction with the complainant. She had not issued any cheque rather she had issued a blank cheque to the complainant for purchasing a piece of land. In reply to question No.3, accused has further stated that no amount of complainant was due towards her. In such a situation, it cannot be believed that the statement given by the accused-respondent No.2 that the cheque which she issued, was not for the purpose of business transaction.

12. The next point, on which the Appellant Court recorded the finding of acquittal, is that the goods were supplied through 'M.U. Enterprises', then, the cheque ought to have been issued in favour of that firm only, and, even if, the complainant was the sole proprietor of that firm, then, also, the complaint ought to have been filed by the complainant being the proprietor of that firm, which was not done in that case.

13. Moreover, the Appellate Court also noticed that the important person i.e. Mohd. Irfan, brother of the appellant/complainant, who could have best revealed the facts, was not examined; which also

caused a doubt in the story of the complainant. The Appellate Court also relied upon an authority of the Hon'ble Apex Court in the case of Milind Sripad Chandarka Vs. Kalim Mohd. Khan rendered in 2011 CRI.L.J. 1912 (Supreme Court).

14. On the basis of aforesaid facts, the Appellate Court allowed the appeal and set aside the judgment and order passed by the Trial Court and acquitted the respondent No.2-accused for the offence punishable under Section 138 of the Act.

15. On an elaborate consideration of the facts and circumstances of the case, I am of the view that the judgment passed by the Appellate Court is based on the evidence produced by the parties, and, there is hardly any scope to interfere with it. Moreover, it is also well settled that where two views are possible and one view which has been adopted by the Appellate Court is also possible, then, the Appellate Court should be slow in interfering with the findings of acquittal.

16. For these reasons, the criminal appeal fails and the same is accordingly dismissed.

17. Let a copy of this judgment, along with the TCR, be transmitted to the Court concerned for information/compliance.

(Pankaj Purohit, J.) 21.05.2024 PN/-