HDFC Bank vs Jasmer Singh

Paramjit Singh Patwalia, J.—The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 18.11.2013 passed by learned Judicial Magistrate 1st Class, Panipat whereby complaint filed by applicant u/s 138 of the Negotiable Instruments Act has been dismissed and respondent has been acquitted of the notice of accusation issued against him.

Brief facts of the case are that a complaint was filed by the applicant-complainant u/s 138 of the Negotiable Instruments Act, 1881 alleging that respondent-accused approached the complainant for availing CC limits as well as term loan facility and assured that they should abide by all the terms and conditions as set in this regard upon which the complainant extended CC limit as well as term loan facility to the accused on execution of their agreement in favour of the complainant. But, the accused failed to adhere to the terms and conditions of agreement and defaulted in making the payment of their dues towards the complainant in discharge of his liability, the accused issued a cheque bearing no. 106576 dated 1.06.2009 amounting to Rs. 2,35,104/- in favour of the complainant. The complainant presented the said cheque for encashment but the same was returned by the banker of the accused due to ''account is dormant'' vide return memo dated 16.06.2009. Despite being contacted, the accused did not make payment of amount of cheque in dispute. Thereafter, the complainant served a legal notice dated 13.07.2009 through his counsel and demanded the amount of cheque in dispute within 15 days, but the accused failed to pay the amount of disputed cheque to the complainant within stipulated period, therefore, the complaint was filed.

On the basis of preliminary evidence, notice of accusation for commission of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 was served upon the accused-respondent to which he pleaded "not guilty" and claimed trial.

The complainant, in order to prove his case, examined himself as CW 1. Thereafter, statement of the respondent-accused u/s 313 Cr.P.C. was recorded wherein he pleaded complete innocence and false implication.

The trial Court, after appreciating the evidence, acquitted the respondent of the notice of accusation, served against him, vide impugned judgment dated 18.11.2013. Hence, this application for grant of leave to appeal.

I have heard learned counsel for the applicant and gone through the impugned judgment.

The trial Court, after appreciating the evidence on record, observed as under:-

A presumption is a legal or factual assumption drawn from the existence of certain facts. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration, so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist.

It is not in doubt or dispute that whereas the standard or proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt, the one on the accused is only mere preponderance of probability. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which include the circumstances which have been brought on record by the parties.

Indisputably, the transactions between the parties had been carried out at Ambala. The Head Office of the complainant is at Mumbai but it has a branch office at Panipat. As per memo dated 16.06.2009, the impugned cheque had been dishonoured by HDFC Bank, Andheri, Mumbai.

Hon''ble Supreme Court in case titled as M/s. Harman Electronics (P) Ltd. Versus M/s. National Panasonic India....... on 12.12.2008, has held that indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefore cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Giving of notice, therefore, cannot have any precedent over the service........ It is a general trend that a banking institution holding several cheques singed by the same borrower cannot only present the cheque for its encashment at different places but also may serve notices from different places so as to enable it to file complaint cases at different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of the accused vis-�-vis the provisions of the Criminal Procedure Code.

Section 177 of the Criminal Procedure Code determines the jurisdiction of a court trying the matter. The court ordinary will have the jurisdiction only where the offence has been committed. The provisions of Section 178 and 179 of the Criminal Procedure Code are exceptions to Section 177. These provisions presuppose that all offences are local. Therefore, the place where an offence has been committed plays an important role. It is one thing to say that a presumption is raised that notice is served but it is another thing to say that service of notice may not be held to be of any significance or may be held to be wholly unnecessary.

A bare perusal of the complaint would clearly go to show that according to the complainant the entire cause of action arose within the jurisdiction of the District Court of Ambala and in that view of the matter, it is that which will have jurisdiction to take cognizance of the offence. So, this court has no jurisdiction to try and decide the present case. Moreover, it is settled law that more signing a cheque do not amount to execution of cheque and the complainant must prove its execution.

In view of above said discussion, this court is of considered view that the complainant has failed to prove his case against the accused. Accordingly, the accused is acquitted from the notice of accusation served upon him. His bail/surety bonds stand discharged. File be consigned to the record room after due compliance.

The Hon''ble Supreme Court in Muralidhar @ Gidda and Another Vs. State of Karnataka, has held as under:

Lord Russell in AIR 1934 227 (Privy Council) highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.

As early as in 1952, this Court in Surajpal Singh and Others Vs. The State, while dealing with the powers of the High Court in an appeal against acquittal u/s 417 of the Criminal Procedure Code observed, "the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs. The State, , Madan Mohan Singh Vs. State of Uttar Pradesh, , Atley Vs. State of Uttar Pradesh, , Aher Raja Khima Vs. The State of Saurashtra, Balbir Singh Vs. State of Punjab, M.G. Agarwal Vs. State of Maharashtra, Noor Khan Vs. State of Rajasthan, Khedu Mohton and Others Vs. State of Bihar, Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, Lekha Yadav Vs. State of Bihar, Khem Karan and Others Vs. The State of U.P. and Another, Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, Umedbhai Jadavbhai Vs. The State of Gujarat, K. Gopal Reddy Vs. State of Andhra Pradesh, Tota Singh and Another Vs. State of Punjab, Ram Kumar Vs. State of Haryana, Madan Lal Vs. State of Jammu & Kashmir, Sambasivan and Others Vs. State of Kerala, Bhagwan Singh and Others Vs. State of Madhya Pradesh, Harijana Thirupala and Others Vs. Public Prosecutor, High Court of A.P., Hyderabad, C. Antony Vs. K.G. Raghavan Nair, State of Karnataka Vs. K. Gopalakrishna, State of Goa Vs. Sanjay Thakran and Another, and Chandrappa and Others Vs. State of Karnataka, It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. There is also a delay of 94 days in filing the instant application. No cogent reasons have been mentioned in the application for condoning the delay.

As such, application for leave to appeal is dismissed on merit as well on account of delay.