Punjab-Haryana High Court
Krishan Lal vs Bal Kishan on 31 July, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-796-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A 796-MA of 2012 (O&M)
Date of Decision: July 31, 2013
Krishan Lal ... Petitioner
Versus
Bal Kishan ... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Parminder Singh, Advocate,
for the petitioner.
Paramjeet Singh, J.
The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 08.03.2011 passed by the learned Judicial Magistrate 1st Class, Karnal, whereby respondent has been acquitted of the accusation under Section 138 of the Negotiable Instruments Act notice of which was served upon him.
Brief facts of the case as mentioned in the impugned judgment are as under:-
"Complainant filed the present complaint under Section 138 of the Negotiable Instrument Act against the accused on the ground that accused borrowed a sum of Rs.60,000/- from the complainant in the month of May 2007 and promised to repay Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 2 the same within few months. The accused to discharge his legal liability issued cheque bearing No. 155921 dated 31.8.07 for a sum of Rs.60,000/- in favour of the complainant. When the complainant deposited the cheque to his drawer bank, the Karnal Central Cooperative Bank Ltd. Mall Road, Karnal for encashment. The said cheque was returned back along with memo dated 24.9.07 with the remarks "Fund Insufficient". The complainant approached the accused and requested to pay the said cheque amount. The complainant served a registered AD legal notice upon accused vide registered AD receipt dated 5.10.2007 but accused did not pay the amount of the said cheque. Accused intentionally and deliberately cheated the complainant. Thus, he had committed an offence under Section 138 of Negotiable Instrument Act and prayed that accused may kindly be punished for the offence committed by him. Hence, this complaint."
On the preliminary evidence, learned Judicial Magistrate First Class, Sirsa summoned the accused-respondent. Thereafter, accused was served with notice of accusation for offence punishable under Section 138 of the Negotiable Instruments Act,1881, to which he pleaded not guilty and claimed trial.
In order to prove the guilt of accused, complainant has examined Ankur Sharma as CW1 and complainant himself as PW3.
Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded. All incriminating facts and circumstances were put to the accused wherein he pleaded complete innocence and false implication.
Kumar Virender2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 3
The learned Trial Court, after appreciating the evidence, acquitted the accused-respondent of the notice of acquisition served upon him vide judgment dated 08.03.2011. Against judgment dated 08.03.2011, the petitioner preferred an appeal before the learned Additional Sessions Judge, Karnal, which was also dismissed as not maintainable before that Court in view of provisions of Section 378(4) Cr.P.C, vide order dated 17.07.2012. Hence, this application for grant of leave to appeal against judgment dated 08.03.2011 passed by learned Judicial Magistrate Ist Class, Karnal.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"20. Coming to the defence of the accused. The accused took the defence that Satpal s/o Lal Singh obtained a loan of Rs.20,000/- from the complainant and he issued the blank undated cheque Ex.C1 as surety. The accused has culled out some vital point which creates doubt about the grant of loan to the accused. Firstly, the accused is not a friend or relative of the complainant. The complainant in his cross-examination has submitted that he and accused used to go to Laha Mandir. Where the accused met him. He further submitted that he is not a money lender. The defence version is further supported by DW1 Satpal s/o Lal Singh who stated that he took a loan of Rs.20,000/- from the complainant and the accused issued the cheque Ex.C1 as surety. Further the complainant has failed to extract anything from the cross-Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 4
examination of this witness. The story of the complainant as well as the defence version is based upon the oral evidence only as there is no documentary evidence to show the extension of any loan to the accused. Lastly, the cheque Ex.C1 is not even filled in the hand writing of the accused and is different from the signatures on the cheque. This also adds substance to the defence version as in his statement under Section 313 Cr.P.C. the accused clearly stated that he issued blank undated cheque Ex.C1 as security to the complainant.
21. So, there is enough evidence on the file to rebut the presumption against the accused. Further the Court should always be circumspect that if there is some substance to the defence version which raises doubts in the mind of court than the burden again shifts upon the complainant to prove the guilt of the accused. It cannot be kept out of site that this time the complainant has to establish the guilt of the accused beyond shadow of reasonable doubt.
22. The above discussion of mine pertaining to the oral evidence on record makes it abundantly clear that the accused has rebutted the legal presumption arising under Section 139 of the Act.
23. In this case, the evidence on record makes it abundantly clear that the accused has proved the defence taken by him by preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. The accused has elicited vital admission from the cross- examination of the complainant.
24. Further the case of complainant is entirely based upon Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 5 the presumption under Section 139 of the Act. Once the same is successfully rebutted by the accused, there remains nothing in the case of the complainant."
Their Lordships 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. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
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, 1991(1) SCC 166, which are that 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 appellate Court was inclined to take a different view, could not be a reason calling for interference."
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 6 by observing as under:
"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."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 7 to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept Kumar Virender 2013.08.06 14:26 I attest to the accuracy and integrity of this document CRM A-796-MA of 2012 (O&M) 8 in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
July 31, 2013 [Paramjeet Singh]
vkd Judge
Kumar Virender
2013.08.06 14:26
I attest to the accuracy and
integrity of this document