Madhya Pradesh High Court
Javed vs Kalusingh on 14 December, 2021
Author: Anil Verma
Bench: Anil Verma
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 49737/2020
( Javed Vs. Kalusingh)
Indore, Dated: 14/12/2021
Shri Mohan Sharma learned counsel for the applicant.
The applicant/complainant has preferred this application
under Section 378(4) of the Cr.P.C. for grant of leave to appeal
against judgement dated 15.10.2020 passed by Special &
Additional Sessions Judge Dhar in criminal appeal No. 20/2020
whereby the learned lower appellate court reversed the judgement
dated 31.1.2020 passed by JMFC Dhar in SCNIA No. 473/2017 by
which the respondent/accused was convicted for offence
punishable under Section 138 of Negotiable Instruments Act, 1881 (in short 'NI Act') and sentenced to undergo one year's RI and to pay compensation of Rs. 6,35,000/- to the applicant/complainant.
Briefly stated facts of the case are that the applicant/complainant gave Rs. 5 lakhs to the respondent/accused and he issued cheque bearing No. 009448 dated 7.7.2017 regarding the repayment of loan amount. When the aforesaid cheque was presented by applicant in his bank account for encashment then the same was dishonoured by captioned 'money is insufficient in said account'. The applicant gave a statutory notice to the respondent through his counsel. However even after service of notice neither the respondent replied the said notice nor paid the loan amount. Then the applicant filed a private complaint against the respondent for commission of offence punishable under Section 138 of NI Act. 3 The learned trial curt after considering the evidence adduced by the parties, found the respondent guilty for commission of 2 offence under Section 138 of NI Act and convicted the respondent for the same and sentenced him to undergo one year's RI and directed him to pay compensation of Rs. 6,35,000/- under Section 357(3) of Cr.P.C. Being aggrieved with the aforesaid order, the respondent/accused preferred criminal appeal before the Sessions Court, which was allowed and the respondent has been acquitted from the aforesaid offence. This order is subject matter of challenge in the present application filed under section 378(4) of the Cr.P.C.
Learned counsel for the applicant submits that the learned Sessions Judge has committed an error in drawing an adverse inference against the complainant for not showing the transaction from his bank account regarding payment to the accused. It is also submitted that the appellate court has wrongly shifted the burden on complainant contrary to the statutory presumption in favour of the complainant. It is also submitted that no reply to demand notice was sent by respondent but the lower appellate court had erred in law in acquitting the accused person.
Learned counsel has placed reliance upon judgement of the Apex court in the case of APS Forex Services Pvt Ltd. Vs. Shakti International Fashion Linkers and others reported in 2020 SCC Online SC 193 wherein it has been held as under:
"Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused 3 was required to lead the evidence that full amount due and payable to the complainant has been paid.
Heard the learned counsel for the applicant and perused the record.
From perusal of the statement of applicant /complainant it reveals that applicant Javed (PW-1) deposed that he has given the aforesaid amount in cash to the respondent/accused from regular income of his shop. But he further admits that his regular income is not Rs. 4-5 lakhs per day. He has also admitted that he has not made any entry in any register regarding payment of Rs. 5 lakhs to the accused. The applicant has not filed any relevant document to establish that at the time of alleged transaction he was having financial capacity to advance loan of Rs. 5 lakhs to the respondent /accused. It is noteworthy that no separate agreement has been executed regarding alleged loan transaction of Rs. 5 lakhs between applicant and accused. Therefore, the respondent has successfully rebutted the presumption under section 139 of NI Act and has raised the probable defence. Hence the appellate court has acquitted the respondent/accused from the aforesaid offence.
The judgement relied upon by the learned counsel for the applicant in the matter of APS Forex Services Pvt Ltd. (supra) is not applicable in the present case as the said judgement is distinguishable on its own fact.
Considering the statement of the complainant Javed and findings given by the Sessions Court, this court is of the view that the applicant/complainant has failed to prove his case beyond reasonable doubts and he could not point out any illegality or 4 impropriety in the impugned judgement, which required any interference by this Court. Accordingly, there is no grounds available on record for granting permission to file an appeal against impugned judgement of acquittal, hence, the present application is hereby dismissed summarily.
(Anil Verma) Judge BDJ Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2021.12.15 13:35:13 +05'30'