Rajkumar Kushwaha vs Asha Jain (Choudhary)

This petition has been filed by the petitioner under Section 378(4) of Code of Criminal Procedure for grant of special leave to appeal against the order

of acquittal dated 03.09.2010 passed by the learned JMFC, Satna in criminal case No. 3204/2007.

Brief facts of the case are that the applicant has filed the instant case against the respondent under Section 138 of the Negotiable Instruments Act

on the ground that she had issued two cheques dated bearing No. 782850 and 782851 for Rs. 1,00,000/- and Rs. 1,56,000/-respectively which were

dishonored due to insufficient funds in the account of the respondent.

The respondent denied all the allegations against her. She submits that her father Shikhar Chand Jain was the owner and possession holder of

land bearing Khasra No. 173/1-Ka/2/1 admeasuring 100 x 115 sq. ft. situated at Siddharth Nagar, Ward No. 8, Kolgawan, District Satna. Respondent

entered into an agreement with the applicant to sale the suit property for a consideration of Rs. 18,40,000/- for the transaction, Rs. 1,76,000/- were

paid by the applicant to her towards earnest money. It was settled between the parties that the sale deed was to be executed within a period of six

months. But the applicant committed breach of agreement and put third person Nileshwar Sharma in the possession of the land. The main contention

of the respondent is that there was no commercial transaction nor any debt or liability, hence the petition is liable to be dismissed.

Before the trial Court, the respondent examined herself as a witness under Section 315 of Cr.P.C. She deposed that she gave two cheques bearing

No. 782850 and 782851 for Rs. 1,00,000/- and Rs. 1,56,000/- respectively on 25.02.2007 and 03.03.2007 as a security of earnest money paid by the

applicant in the event of failure of an agreement.

In this regard, the respondent produced the sale agreement Ex. D/7 and other documents Ex. D/1 to D/6. Learned trial Court relying on the defence

of the respondent acquitted her on the ground that the aforesaid sale agreement and the particulars there of were not pleaded by the applicant and that

the cheques having not been issued in respect of any debt or liability, hence, no offence was made out under Section 138 of Negotiable Instruments

Act against the respondent. Hence, she was acquitted from the charges under Section 138 of Negotiable Instruments Act.

Against the aforesaid judgment, the applicant filed a criminal revision before the Court of Session. Learned Session Court dismissed the case on

08.12.2010 on the ground that the revision was not maintainable under sub-section 4 of Section 378 of Cr.P.C. Hence, this application has been filed

by the applicant for grant of special leave to appeal against the acquittal of the respondent.

Heard learned counsel for the parties. Perused the record.

The respondent admitted that both the cheques Ex. P/1 and P/3 were issued by the hesr with her signature on it but she strongly denied that the

aforesaid cheques were issued in respect of any debt or liability.

It is important to note that the respondent produced the sale agreement Ex. D/7 which clearly establish that the applicant with the respondent

entered in the said agreement for purchasing the land bearing Khasra No. 173/1-Ka/2/1 admeasuring 100 x 115 sq. ft. situated at Siddharth Nagar,

Ward No. 8, Kolgawan, District Satna for Rs. 18,40,000/-and he paid 15% earnest money i.e. Rs. 2,76,000/- to the respondent for purchasing the land.

Rs. 1,00,000/- was paid through cheque No. 49276 and Rs. 1,56,000/- was paid in cash by the petitioner to the respondent.

These facts are very material in the case. The aforesaid agreement was executed between both the parties on 02.01.2006. The cheque Ex. P/1

was issued on 02.01.2006 and Ex. P/3 was issued on 03.03.2007 by the respondent in favour of the applicant.

In the complaint under Section 138 of Negotiable Instruments Act, there is no pleading about the aforesaid transaction and particulars of amount

paid by the applicant to the respondent. This Court also finds from the admission of the applicant in his cross-examination the testimony of respondent

seems reliable for that the cheques Ex. P/1 and P/3 were not issued in respect of any debt or liability. The applicant in paragraph 2 of his cross-

examination, admitted that an agreement for sale has been executed between the parties on 02.01.2006. In that respect, he paid Rs. 1,56,000/- by cash

and Rs. 1 lakh by way of cheque. He also admitted that from the aforesaid amount, he received Rs. 50,000/- from the respondent in cash. Further, he

clearly admitted that to refund his amount, both cheques were issued by the respondent with regard to the agreement of sale. There is no

corroborative evidence on record with regard to the fact that the disputed cheques were issued in respect of any debt or liability. Hence, the provisions

of offence under Section 138 of Negotiable Instruments Act are not made out against the respondent.

After having considered the evidence available on record and findings of the learned trial Court, this Court finds that the Court below properly

evaluated the evidence on record and gave the findings against applicant in right perspective. Hence, the accused deserves to be acquitted on the

basis of the evidence on record, the same cannot be reversed because it is not vitiated on account of some gross perversity and erroneous

appreciation of evidence on record.

The Apex Court in the case of Anjan Dasgupta Vs. State of West Bengal and Ors. [ 2017 Cri. L.J. 529], Madathil Narayanan and Ors. Vs. State

of Kerala and Another [ 2017 Cri. L.J. 732] and in the case of Bhagwan Jagannath Markad and Ors. Vs. State of Maharashtra [ 2017 Cri. L.J. 578]

has held as under :-

“(i) Appeal against the acquittal, if two views are plausible - View which goes in favour of acquittal has to be adopted.

(ii) Plausible view taken by trial court that accused persons cannot be convicted on basis of proper appreciation of evidence â€" Order of High Court

setting aside acquittal in exercise of its appellate jurisdiction is not just and valid.â€​

In view of the aforesaid, this Court cannot reverse the judgment of acquittal merely because the other view was possible. The prosecution cannot

be said to have proved its case beyond reasonable doubt, therefore, interference with the impugned judgment passed by the learned trial Court is not

called for.

Hence, the application for leave to appeal is accordingly dismissed.