Punjab-Haryana High Court
Talwinder Singh vs Diwakar Singla on 12 November, 2014
Author: Sabina
Bench: Sabina
CRM-A-290-MA of 2014 1
202
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A-290-MA of 2014
Date of decision: November 12, 2014
Talwinder Singh
.....Applicant
Versus
Diwakar Singla
.....Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Aras Talwar, Advocate for applicant.
SABINA, J Respondent had faced trial in a compliant filed by the applicant under Section 138 of Negotiable Instrument Act, 1881 qua dishonour of cheque dated 02.02.2012 in the sum of ` 1,50,000/-.
Case of the applicant in brief was that he had advanced friendly loan to the tune of ` 1,50,000/- to the respondent. However, when the cheque issued by the respondent with the view to repay the loan, was presented for encashment, the same was dishonoured with the remarks "cheque unusuable".
I have heard learned counsel for the applicant and have gone through the record available on the file carefully.
Learned trial Court while ordering the acquittal of the respondent has held as under:-
MAHAVIR SINGH 2014.11.17 14:56 I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 2
"It was for the complainant to prove that the cheque in question was not illegally procured by him and not tampered/forged by the complainant but the accused has given him in discharge of legally enforceable liability. Further it was burden on the complainant to prove his financial capacity meaning thereby that how he arranged such a huge amount to give to accused But in his cross-examination, the complainant has admitted that he is doing the work of sewing machines and he is the proprietor of said business but in the same cross examination he has stated that the loan amount has not been given by him from his own income but he has taken some money from his son and some money from his friends Roop Singh and Om Prakash. But it is very strange specially in todays world that a person took a loan from somebody else to give somebody else and even without any interest on that amount. It is also very strange that he taken money from two and three persons neither he remember from whom he has taken how much money nor those persons ever ask him to return that amount as in the present case complainant has admitted that he does not know how much money has been taken by him from Roop Singh and Om Parkash and even both of them has never ask him about money. At one place during his cross examination he also stated that he has returned the amount to Om Parkash but it is very strange that a person while taking amount did not remember how much amount he has taken but meanwhile without knowing he returned that amount to that person. Further it is very strange that he while giving that huge amount of loan did not maintain any account nor he himself while taking money from somebody MAHAVIR SINGH 2014.11.17 14:56 maintain any record. So it is very difficult to believe I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 3 that a person would give huge amount of loan to a person without there being any writing to that effect. In his cross-examination he further stated that he is not having a regular Accountant but the Accountant who used to make entries in his Account books used to come to him once or twice in a month moreover he himself did not maintain any kacha record of his account and it is only on the basis of memory that entries in the account books has been made. So this fact leads to the non reliability of books of account but the complainant himself has admitted that no entries has been made regarding the loan amount hence this fact also not favour the claim of complainant. Further the complainant stated that he has taken some money from his son but it is very strange that he failed to recall how much amount has been given by his son and moreover his son himself is earning Rs.5000/- per month which creates a doubt about his capacity to give. However the complainant also failed to recall the date of giving the loan and he did not mention this fact of giving amount by his son and friends. However he failed to recall who has filled the cheque in question. At one place he is saying that the accused has filled the entire cheque and at another place he said that he has filled the date and his name. So all these facts creates doubt about the construction of cheque and it reliability. The complainant during his cross examination himself has admitted that he has taken some loan amount from his friends Roop Singh and Om Parkash, but to prove this fact neither he has maintained any record nor examined any of those witnesses. Hence this fact also not support the version of complainant as mere raising contentions are not relevant to fix the liability MAHAVIR SINGH 2014.11.17 14:56 of a person. This very valuable admissions in the I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 4 cross-examination of the complainant lends corroboration to the defence version rendered by the accused.
xxxxxxxxx In defence, accused has examined DW1 Arshdeep Singh, Sales Officer of ICICI Bank who has stated that the accused has sent a letter to the Bank requesting to destroy the cheques and according he placed on record that letter as Ex DW1/1 and Account statement of Accused as Ex DW1/2. Even he has take this defence that the cheque in question is one of the cheque which has been missing from his office and regarding this he has issued instructions to the bank to destroy all the cheque which is Ex DW1/1. The complaint is very much silent about the DW1/1 moreover the complainant is silent as to what prompted him to advance such a huge amount to a person even without any interest. Moreover the complainant failed to prove on record the sources of that money. So as such, the complainant has miserably failed to show his own financial capacity to pay such a huge amount. He could not state from where he got this huge amount of Rs.1,50,000/-. Moreover during his cross examination he himself has admitted that he has taken from his son and two of his friends but he failed to record how much amount has been taken by him from them and he also failed to prove on record any writing regarding the giving of loan."
The reasons given by the trial Court while ordering the acquittal of the respondent are sound reasons and call for no interference. In the present case, the defence version putforth by the respondent that the missing cheque from his MAHAVIR SINGH 2014.11.17 14:56 I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 5 office has been misused by the applicant, appeared to be probable in view of the cross-examination of the applicant.
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.
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."
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down MAHAVIR SINGH parameters, in which interference can be made in a judgment of 2014.11.17 14:56 I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 6 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 MAHAVIR SINGH 2014.11.17 14:56 of the appellate court to marshal the entire evidence I attest to the accuracy and authenticity of this document Chandigarh CRM-A-290-MA of 2014 7 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 is made out to grant leave to file an appeal. Accordingly, this application is dismissed.
November 12, 2014 (SABINA)
m.singh JUDGE
MAHAVIR SINGH
2014.11.17 14:56
I attest to the accuracy and
authenticity of this document
Chandigarh