Jitendra Agarwal vs Gaurav Sharma
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Uttarakhand High Court

Jitendra Agarwal vs Gaurav Sharma on 24 June, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

                              1




                     Judgment reserved on: 10.06.2025
                    Judgment delivered on: 24.06.2025


HIGH COURT OF UTTARAKHAND AT NAINITAL

           Criminal Appeal No.246 of 2014

Jitendra Agarwal                              .....Appellant

                             Vs.

Gaurav Sharma                               .....Respondent

Presence:

Mr. Prabhakar Narayan, learned counsel for appellant.

Mr. Pramod Belwal, learned counsel for respondent.

Hon'ble Pankaj Purohit, J. (Per)

This is an appeal preferred by the appellant assailing the judgment and order dated 23.07.2014 passed by learned Special Judicial Magistrate, Rishikesh, District Dehradun, in C.G. No.745 of 2014 Jitendra Agarwal Vs. Gaurav Sharma, whereby, the said Court had acquitted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as 'the Act').

2. The facts in brief are that the respondent was well known to appellant and was used to lend money from time to time from the appellant. On 03.11.2008, the respondent had borrowed Rs.2,00,000/- from the appellant in cash for two months and at the same time gave him a pre-filled cheque with the date 03.01.2009 marked on it after two months. The respondent signed it in his presence, but, the said cheque was dishonored due to payment stoppage by the Drawer, when the appellant deposited the said cheque in his PNB account, thereafter,

the appellant on 14.01.2009 sent a legal notice through registered post, which was duly received by the respondent on 17.01.2009. When the respondent did not return the said amount within prescribed time, then the appellant filed a criminal complaint against the respondent under Section 138 of the Act before the learned Special Judicial Magistrate, Rishikesh, which was registered as Criminal Complaint Case (C.G.) No.745 of 2009 Jitendra Agarwal Vs. Gaurav Sharma.

3. During trial, as many as two witnesses were produced by the prosecution in order to prove its case. Thereafter, the statement of respondent/accused person was recorded under Section 313 of the Cr.P.C., in which, he denied the appellant's story. The Trial Court at the end of trial has recorded the findings of acquittal. Hence, this Appeal.

4. Learned counsel for the appellant submits that the respondent used to take loan from the appellant and the appellant in ordinary course makes entries of the loan amount in a diary maintained by the appellant, perusal of which makes it clear that signatures of the respondent in diary was same as the signature made on the dishonored cheque. He further submits that the two witnesses who were present at the time of advancing the money to the respondent were never called by the learned Trial Court.

5. He also submits that the learned Trial Court had erred in not appreciating the fact that the respondent under planned conspiracy made complaint to the bank as well as to the P.S. Rishikesh regarding the loss of his cheque book, only a day prior of the presentation of cheque before the bank by the appellant, which creates doubt over the conduct of respondent and

learned Trial Court relied on such false and baseless story of the respondent and acquitted him from the charges under Section 138 of the Act.

6. Learned counsel for the appellant further submits that this is a fit case for reversal of acquittal, as the judgment is based on a misreading/omission to consider the material evidence on record. To substantiate his argument, he placed his reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Constable 907 Surendra Singh and Anr. Vs. State of Uttarakhand rendered in Criminal Appeal No.355 of 2013, especially, on para 12, which is quoted below:-

"12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

7. On the other hand, learned counsel for the respondent submits that the respondent neither knew the appellant nor did take money from the appellant. He also submits that the respondent did not give the cheque in-question to the appellant; according to him, his cheque book was misplaced and there were 20 leafs i.e. Cheque Nos.960801-20 in it. These cheques were of his account and he had signed on it. He himself on 30.12.2008 request the Bank to stop the payment of said cheques and on 01.01.2009 reported the same at P.S. Rishikesh. He also submits that one witness namely Prateek Kaliya has been examined before the learned Trial Court, but the evidence of the said witness was disbelieved by the learned Trial Court.

8. Learned counsel for the respondent placed a reliance upon Para 3 of the judgment rendered by Hon'ble Supreme Court in the case of Ghurey Lal Vs. State of U.P. rendered in Criminal Appeal No.155 of 2006 dated 30.07.2008 reported in (2008) 10 SCC 450, which is extracted as under:-

"3. We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has "very substantial and compelling reasons."

9. Learned counsel for the respondent contends that appellate court should be slow in interfering with the judgments of acquittal unless there is perversity. He further submits that the case law cited by the appellant is rather helpful to the respondent-accused.

10. Heard learned counsel for the parties and perused the entire material available on record. The finding recorded by the learned trial court is quite convincing and needs no interference, as from a bare reading of the material available on record, it is clear that the facts mentioned even taken on their face value won't make out a prima-facie case against the respondent, as the appellant was doing an ordinary private job i.e. making shutters, where, such a big amount of Rs.2,00,000/- came from, which he had given to the respondent, this creates doubt in the mind of learned Trial Court and since the appellant did not prove that he

had given Rs.2,00,000/- to the respondent, learned Trial Court had rightly acquitted the respondent.

11. There is yet another aspect of the matter. The respondent has been acquitted. In appeal against acquittal, it is held by Hon'ble Apex Court in catena of judgments that the Courts should be slow in interfering in the judgments of acquittal as the innocence of the accused is further reinforced by his acquittal. Unless and until there is perversity in the judgment of acquittal, the same should not be interfered with.

12. It is trite law that that while hearing the appeal against acquittal, the power of reviewing evidence must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of the innocence is further strengthened by the acquittal. The appellate court should reverse an acquittal only when there are "very substantial and compelling reasons". I am fortified in my view by the judgment of the Hon'ble Apex Court in case of Ghurey Lal (Supra).

13. The trial court has passed an elaborate judgment for recording the finding of acquittal and this Court does not want to reiterate the same for the sake of repetition. Learned counsel for the appellant could not argue any ground so as to interfere with the well reasoned judgment passed by the trial court.

14. For the aforesaid reasons and following the dictum of the Hon'ble Apex Court, I am also of the considered view that no ground for interference, at all, is made out in this matter, as there is no illegality and perversity in the impugned judgment and order.

15. The appeal is bereft of merit and the same is accordingly dismissed.

16. Let the T.C.R. be immediately sent back to the trial court for consignment.

(Pankaj Purohit, J.) 24.06.2025 PN