Punjab-Haryana High Court
Anil Kumar vs Bhupinder Kumar & Anr on 15 December, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
213
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.A-1460-MA of 2014
Date of decision: December 15, 2014
Anil Kumar
...Applicant
Versus
Bhupinder Kumar and another
...Respondents
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Ms.Sunita Nambiar, Advocate for
Mr.Balkar Singh, Advocate
for the applicant.
****
INDERJIT SINGH, J.
This order of mine shall dispose of an application filed by applicant-Anil Kumar under Section 378(4) Cr.P.C. seeking permission for special leave to appeal against Bhupinder Kumar and another respondent challenging the judgment dated 30.07.2014 passed by learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, whereby the accused-respondent No.1 has been acquitted from the charge under Section 138 of the Negotiable Instruments Act.
It is mainly stated in the application that impugned judgment dated 30.07.2014 passed by learned JMIC, Yamuna Nagar at Jagadhri is against the facts and circumstances of the case and also the law on the point. Learned JMIC, Yamuna Nagar at Jagadhri has wrongly acquitted respondent No.1 in the complaint filed by the VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-1460-MA of 2014 -2- appellant without appreciating the evidence available on record.
I have heard learned counsel for the applicant and have gone through the record.
From the record, I find that the complaint was filed by complainant Anil Kumar against Bhupinder Kumar and M/s Bhupinder Kumar Contractor and Suppliers on the ground that accused No.1, who happens to be proprietor of accused No.2 firm being on friendly terms with the complainant, demanded a sum of `5 lacs from the complainant in the first week of May 2012. The money was required by the accused for the purposes of his firm and complainant gave friendly loan of `5 lacs to the accused in presence of one Anuj Kumar. In discharge of this existing liability, accused issued a cheque dated 09.08.2012 for a sum of `5 lacs drawn on Punjab National Bank, Branch Saharanpur. The said cheque was presented by the complainant to his banker Punjab National Bank, Yamuna Nagar, which was dishonoured by the Bank with remarks 'funds insufficient'. Then legal notice was issued and when the accused failed to make the payment, then the present complaint was filed. Learned JMIC, Yamuna Nagar at Jagadhri acquitted respondent No.1 in the complaint case vide judgment dated 30.07.2014 by holding that there is no evidence on the case file regarding the date of demand of loan and date on which the loan was given to accused by the complainant.
From the evidence on record, especially from the judgment passed by learned JMIC, Yamuna Nagar at Jagadhri, I find that in the present case, firstly no date has been given as to when the loan was VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-1460-MA of 2014 -3- demanded nor specific date has been mentioned as to when the complainant paid amount to the accused. It is also clear from the record that no document was written at the time when the amount was paid to the accused. Such a huge amount of `5 lacs was paid by the complainant to the accused without getting any security or without executing any document. Further, the lower Court has also taken the note of the fact that `5 lacs were paid in cash whereas as per Section 269 (ss) of the Income Tax Act, such a huge amount cannot be paid in cash but only through cheque etc. and the lower Court relied upon the judgment passed by the Hon'ble Supreme Court in Vijay vs. Laxman, 2013(1) R.C.R. (Crl.) 1028 correctly.
Learned JMIC, Yamuna Nagar at Jagadhri, after appreciating the evidence, has correctly held that complainant failed to prove by leading cogent evidence that accused issued the cheque in discharge of his existing legal liability. The existing liability has not been proved. Learned lower Court has also correctly appreciated the evidence on the point that in the complaint, it is stated that loan amount was given in presence of one Anuj Kumar. Anuj Kumar has appeared as DW-1 and stated that no such loan was given to the accused in his presence and no cheque was given by the accused to the complainant in his presence. Defence of the accused is that he (accused), complainant and Anuj Kumar were engaged in partnership business in the name and style of M/s Swastik Timbers and the cheque in question was taken away by the complainant. Learned JMIC, Yamuna Nagar at Jagadhri held that defence version is more VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-1460-MA of 2014 -4- probable. This fact regarding complainant, accused and Anuj Kumar being partners, has not been denied at the time of arguments even before this Court. Learned lower Court has also taken note that this fact has been concealed by the complainant from the Court as there is no mention that complainant, accused and Anuj Kumar were partners in M/s Swastik Timbers.
Keeping in view the findings of learned JMIC, Yamuna Nagar at Jagadhri, I find that these are correct and as per law. No illegality has been committed nor in any way, the judgment can be held as perverse. The findings are as per law and evidence on record.
In view of the above, I find that the judgment dated 30.07.2014 passed by learned Judicial Magistrate Ist Class, Yamuna Nagar is correct and as per law and does not require any interference from this Court.
Therefore, I find that no ground is made out to grant permission for special leave to appeal and therefore, the present application stands dismissed.
December 15, 2014 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2014.12.17 16:32
I attest to the accuracy and
authenticity of this document
Chandigarh