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Punjab-Haryana High Court

Om Parkash vs Subhash Chand on 8 February, 2010

Author: Sabina

Bench: Sabina

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
                     AT CHANDIGARH
                            Crl.AppealNo.291 MA of 2009 (O&M)
                                      Date of decision : 08.2.2010

Om Parkash
                                                                    ...Appellant
                                    Versus
Subhash Chand
                                                                   ...Respondent

CORAM : HON'BLE MRS.JUSTICE SABINA Present: Mr.M.K.Singla, Advocate for the petitioner. Sabina J.

Complainant-Om Parkash filed a complaint under Section 138 of Negotiable Instruments Act, 1881 against the accused Subhash Chand who was acquitted, vide judgment dated 11.2.2009 passed by the Sub Divisional Judicial Magistrate, Samana. Hence, the complainant has filed this application for grant of leave to file an appeal against the order mentioned above.

The brief facts of the case, as noticed by the trial Court in para 1 of its judgment, are as under:-

"Complainant Om Parkash filed the present complaint under Section 138 of Negotiable Instrument Act 1881against the accused Subhash Chand on the grounds inter alia that accused in discharge of his debts and liabilities issued a Cheque No.813366 dated 19.2.2005 of Rs.2,52,500/- drawn on State Bank of Patiala Branch Patran favouring the complainant; that the complainant presented the cheque in question to his Banker State Bank of Patiala Branch at Samana, but the same was returned dishonoured with the Memo dated 22.2.2005 with the remarks "insufficient funds", that the accused issued the cheque in question in favour of the complainant with malafide intention knowing well that he has no sufficient funds in his account; that the accused has failed to discharge his legally enforceable liability, qua the cheque in question even after receipt of legal notice dated 28.3.2005 within a period of 15 days. Hence, the present complaint."

After hearing learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal.

Learned trial Court has observed that it was proved on record that the cheque in question had been tampered with. In fact, initially, the cheque had been issued for Rs.2500/- and the said amount has been subsequently altered to Rs.2,52,500/- by adding digit 25 in front of Rs.2500/- with different pen and ink. In this regard respondent No.1 examined hand writing expert who had also opined that the cheque in question had been tampered with. The said fact in itself was sufficient to acquit the accused as the cheque in question had been presented after material alteration. Thus, the trial Court while acquitting the respondent has given sound reasons.

Their Lordship of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the court.

A Division Bench of this Court, in State of Punjab v. Hansa Singh 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-

"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 991 (1) SCC 166, which are the interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellant Court was inclined to take a different view, could not be a reason calling for interference.

No ground is made out to grant leave to file an appeal.

Accordingly, this application is dismissed.

[ Sabina ] Judge 08.02.2010 sd