Mohd. Amjad vs State of Punjab and Another

Paramjeet Singh, J.—The instant application has been u/s 378(4) Cr.P.C. for grant of leave to appeal against the judgment dated 10.04.2010 passed by learned Judicial Magistrate First Class, Malerkotla, whereby respondent No. 2 has been acquitted of the charges framed against him. Brief facts of the case are that criminal complaint No. 58 of 27.04.2007 filed by the petitioner-complainant against respondent No. 2 u/s 138 of the Negotiable Instruments Act with the averments that accused-respondent no. 2 borrowed a sum of Rs. 2 lacs from the petitioner and the accused-respondent No. 2 in discharge of his part of liability issued a cheque bearing No. 276993 dated 13.10.2006 for Rs. 2 Lacs drawn on State Bank of Patiala, branch Bathinda Cantt. with the assurance that the cheque will be encashed on its presentation, but when the aforesaid cheque was presented by the complainant-petitioner to his banker, the same was dishonoured and was returned back with the remarks "Drawer''s signature differs'' vide memo dated 16.03.2007. Thereafter, the complainant served notice of demand dated 02.04.2007 upon the accused, but the accused refused to receive the said notice. After recording preliminary evidence, accused-respondent no. 2 was summoned u/s 138 of the Negotiable Instruments Act. Finding a prima facie case against respondent no. 2, notice of accusation was served upon the accused-respondent no. 2 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 accused was recorded u/s 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and pleaded innocence.

The learned trial Court, after trial, acquitted respondent No. 2 vide judgment dated 10.04.2010. Hence, this application for grant of leave to appeal.

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

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

Both the counsel for the parties advanced arguments as per their case. After hearing and going through the entire oral as well as documentary evidence on file I have found that though presumption lies in favour of the holder of the cheque with regard to its handing over for discharging of liability but it is always lawful to look into the merits of the case. It should have been given for the discharge of legal liability and complainant should have proved that the complainant has committed offence. After this, the liability of the accused is to be seen. It is the accused, who is to prove that under which circumstances, he has been called up for having committing offence u/s 138 of Negotiable Instruments Act. When bank gives its opinion that the signatures of the account holder differs, it is on the person in whose favour it was issued to prove that he did so to cause inconvenience to his creditor or that such person has committed offence. The offence u/s 138 of Negotiable Instrument Act is very technical in nature. The language of the demand notice does not match with the contents of complaint. As per the notice, bouncing of cheque was due to the insufficient funds but as per the memo it was not so rather it was due to difference in signatures. Besides it, notice was issued on 02.04.2007, without waiting for lapse of time, after which, service of a person can be presumed, if Registered Cover is not received back, complaint has been filed on 24.04.2007. Thus, the complaint is premature also. The version of the complainant is very much important of the time when he was cross-examined. He has stated that he has maintained account books of his business but he cannot tell as to how much is his annual income. As per him, he has not mentioned these cheques in his accounts which is doubtful. Keeping in view the circumstances, when the technicalities of the offence have not been proved, there is no need to comment further on the merits of complaint. Thus, the complaint stands dismissed and accused is hereby acquitted. Bail bonds and surety bonds stands discharged....

The learned counsel for the petitioner has not been able to point out any infirmity or illegality in the impugned judgment either on facts or on law which would call for interference by this Court.

The scope of revision against acquittal has been well discussed by the Hon''ble Apex Court in a judgment rendered in Bindeshwari Prasad Singh alias R.P. Singh and others versus State of Bihar (now Jharkhand) and another, 2002 (4) R.C.R. (Cri.) 61 (SC), wherein the Hon''ble Apex Court has observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It is further observed that the High Court should not re-appreciate the evidence to reach a finding different than the one arrived at by the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. It is further observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and it should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law and to convert an order of acquittal into one of conviction. It cannot loose sight of the fact that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the court exercising revisional jurisdiction.

Taking into consideration the facts of the case in hand and following the ratio of judgment of the Hon''ble Apex Court, rendered in Bindeshwari Prasad Singh''s case (supra), the petitioner has no case. As such, this application for leave to appeal is dismissed. Since I have decided the application for leave to appeal on merits, no separate order is required to be passed on the application for condonation of delay of 68 days in filing the appeal.