2015 (12) TMI 990 - HC - Indian Laws

Grant of leave against the judgment of acquittal - The accused-respondent has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act (for short NI Act ) - Held that - On perusal of statement of the complainant, it has come on record that in his cross-examination, he has admitted that he is income tax payee and from the last six years, he has furnished ITR but he has not shown the amount of cheque in dispute in Income Tax Return. He has stated that he has borrowed this amount from his father as his father retired in December 2013 from Agricultural Department. Neither he has received anything in writing from his father nor there was any document to show that the amount was borrowed from him. It has also not been proved on record that he maintained any accounts. Moreover, he has also not produced any account statement to show that he has taken amount from his father. As per statement of complainant, his father retired in December 2013 from Agricultural Department and the amount in question was given to the accused in February 2012 much prior to his retirement. The accused has placed on record three documents Ex.D1 to Ex.D3. Ex.D1 is copy of complaint filed by brother of the complainant in the year 2010 and two cheques amounting to ₹ 55,000/- have also been mentioned. Said cheques were returned due to insufficiency of funds and thereafter, complaint was filed. No doubt, the complaint was dismissed as withdrawn but it shows that the cheque in dispute is also of the same series on the basis of which, earlier complaint was filed, which was dismissed as withdrawn. It has specifically been mentioned by the trial Court that it cannot be ruled out that the cheque in dispute was not misused as taken as a defence by the accused. The complainant has failed to prove as to in which capacity, he had paid such a huge amount without any document. The complainant has also failed to prove his case and the presumption goes against him. The trial Court considered the submissions and by considering the evidence on record, no case was made out against the accused and he was acquitted of the charge. Learned counsel for the applicant is not able to prove as to how the finding recorded by the trial Court is contrary to the evidence or law. Hence, the present application for grant of leave to appeal against judgment of acquittal is dismissed.

Summary

Issues:
Delay in filing application for grant of leave to appeal against judgment of acquittal, grant of leave against judgment of acquittal under Section 378(4) of the Code of Criminal Procedure, complaint under Section 138 of the Negotiable Instruments Act, evidence presented in the case, presumption under Sections 118 and 139 of the NI Act, acquittal of the accused, grounds for appeal against judgment of acquittal.

Analysis:

The judgment addresses the issue of a delay of 18 days in filing the application for grant of leave to appeal against the judgment of acquittal. The application is allowed, and the delay is condoned based on the grounds mentioned therein. Another issue discussed is the grant of leave against the judgment of acquittal under Section 378(4) of the Code of Criminal Procedure. The application was filed for grant of leave against the judgment of acquittal dated 13.11.2015 passed by the Additional Chief Judicial Magistrate, Palwal, where the accused was acquitted for an offense punishable under Section 138 of the Negotiable Instruments Act (NI Act).

The judgment delves into the details of the complaint filed against the accused under Section 138 of the NI Act. The complainant alleged that the accused borrowed a sum of Rs. 4,25,000 and issued a cheque in favor of the complainant, which was later dishonored. The complainant presented evidence including the cheque, memo, legal notice, and receipt to support the claim. The accused denied the allegations during the trial.

The judgment extensively discusses the evidence presented during the trial, including witness testimonies and documents tendered by both parties. It highlights the importance of Sections 118 and 139 of the NI Act, which provide presumptions related to negotiable instruments and in favor of the holder of a cheque, respectively. The judgment analyzes the evidence on record, including discrepancies in the complainant's statements and the lack of proof regarding the origin of the borrowed amount.

Furthermore, the judgment evaluates the defense presented by the accused, which included documents related to a previous complaint involving similar circumstances. The trial court considered the evidence and ultimately acquitted the accused based on the lack of substantial proof and the presumption going against the complainant. The judgment concludes by dismissing the application for grant of leave to appeal against the judgment of acquittal, as the applicant failed to demonstrate any contradictions in the trial court's findings.

In essence, the judgment provides a detailed analysis of the issues related to the delay in filing the application, evidence presented in the case, application of legal presumptions under the NI Act, and the grounds for acquittal of the accused. It emphasizes the importance of substantiated evidence and adherence to legal provisions in cases involving negotiable instruments and judgments of acquittal.