Rajasthan High Court - Jaipur
Oswal Finlease Pvt Ltd vs State Of Rajasthan And Anr on 17 September, 2016
Author: Sabina
Bench: Sabina
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
JUDGMENT
S.B. CRIMINAL LEAVE TO APPEAL NO. 332/2016
1. Oswal Finlease Pvt. Ltd. having its office at Gulab Niwas M.I.
Road Jaipur-302001 through its Authorized Signatory, Ram
Kishore Meena.
Vs.
1. State of Rajasthan through P.P.
2. Khalil Ahmed S/o Shri Munir Khan R/o Plot No. 175, Jalupura,
Jaipur, Rajasthan.
Date of Judgment : September 17, 2016.
HON'BLE SMT.JUSTICE SABINA
Mr. Pankaj Gupta With
Ms. Arpita Shrimali, for the appellant.
Respondent No. 2 had faced trial in a complaint filed by the
applicant/appellant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the Act).
Case of the complainant in brief was that respondent no. 2 took loan from the complainant on 01.05.2001 to purchase a bus. Cheque dated 18.07.2002 in the sum of Rs. 1,58,950/- was issued by respondent no. 2 to pay the remaining installments. However, when the cheque was presented for encashment the same was dishonoured by the Bank. Despite service of notice, respondent no. 2 had failed to pay the cheque amount to the complainant. Hence, the complaint was filed by the complainant under Section 138 of the Act.
Trial Court vide order dated 14.06.2016 dismissed the complaint. Hence the present application by the applicant for leave to appeal.
I have heard learned counsel for the applicant and have gone through the record available on the file carefully.
Trial Court while ordering the acquittal of the respondent no.2 held that P.W. 1 Ashraf Khan representative of the complainant had admitted in his cross-examination that out of the cheque amount, respondent no. 2 had deposited Rs. 1,03,350/-. Loan had been advanced in the sum of Rs. 1, 75,000/-. Since the amount of Rs. 1,03,350/- had been received by the complainant, out of the cheque amount and the complainant had failed to lead any documentary evidence to establish the amount due against the respondent no. 2, the respondent no. 2 could not be proceeded against in criminal proceedings.
The reasons given by the trial court while ordering the acquittal of the respondent no. 2 are sound reasons and call for no interference.
Hon'ble the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, has held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
6. Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court.
If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"
Hence, no ground for grant of leave to appeal is made out.
Dismissed.
(SABINA), J Sudha /29