Jharkhand High Court
Sunil Kumar Singh vs The State Of Jharkhand on 2 July, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1616 of 2018
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Sunil Kumar Singh --- ---- Petitioner
Versus
1. The State of Jharkhand
2. Jitendra Kumar Singh ---------- Opp. Parties
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CORAM:The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mr. Justice Ratnaker Bhengra
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For the Petitioner : Mr. Mukesh Bihari Lal, Adv.
For the State : APP
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02/02.07.2018 Heard learned counsel for the petitioner and learned A.P.P.
Petitioner has prayed for grant of special leave to appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the judgment of acquittal dated 26th March 2018 passed in Complaint Case No.1842/2015 by the learned court of Judicial Magistrate, 1st Class, Ranchi whereunder the sole accused / opposite party no.2 has been acquitted of the charges under Section 138 of the N.I. Act.
The complainant alleged that pursuant to an agreement dated 10th June 2014 for selling a piece of land situate at Mouza Chutu, P.S. Sadar, Thana No.164, District Ranchi area 2 Acre 6 Decimals with the condition that the land would be given to the complainant through a registered deed within a year from the date of agreement, a sum of Rs.1,50,000/- was paid in advance to the accused. On his failure to execute the registered deed in his name, he pursued the accused on 13th June 2015 for registry of the land or return of the amount taken in advance. Pursuant thereto cheque bearing no.000054 for the sum of Rs.1,50,000/- was handed over to him by the accused. On presentation in the Indian Overseas Bank, Nevari Branch, Ranchi on 13 th June 2015 it was dishonoured for the reason "Account Blocked". Complainant received the cheque return memo on 16th June 2015. He sent a pleader's notice on 3rd July 2015 to the accused but had not received any reply from him. Accordingly, the complaint was lodged on 29th July 2015 under the aforesaid provisions of the N.I. Act.
Learned trial court after perusal of the material evidence and documents available on record found prima-facie case under Section 138 N.I. -2- Act and issued summon to the accused for appearance. On his appearance the charges were explained to him to which he pleaded not guilty and claimed to be tried. Complainant examined himself as witness on 5 th July 2017 and was cross-examined and discharged on 19th August 2017. Statement of accused was recorded under Section 313 Cr.P.C. on 8 th August 2017. Defence failed to bring evidence within time and his evidence was closed on 23 rd February 2018.
Learned trial court considered the case of the complainant in the light of the evidence on record. The original cheque was marked as Exbt.1. The cheque return memo was marked as Exbt.2. Legal notice and postal receipt were marked as Exbt.3 and 4. Complainant supported his case in his examination-in-chief on affidavit but in his cross-examination he deposed that the agreement entered between the parties with regard to the sale of the land has not been filed by him in the court and he cannot file the same in the court in future also. He cannot state the Khata Number and Plot Number of the land for which the agreement was executed and the money was given to the accused. He cannot state as to which para of his evidence was typed by his Advocate. He cannot state on which date the accused received the legal notice demanding the cheque amount and in what language the legal notice was sent to him. He did not know whether the legal notice was signed or not. He further deposed that he does not know the house of the accused as he has never visited his place. He developed relationship of friendship with the accused on usual route to his workplace. He denied the suggestion that there was no agreement entered between the parties for sale of land as he had entered into the agreement of sale of the land with Janki Singh and Kailash Singh and the cheque was issued to these two people by whom he took the cheque and misused it. After closure of his evidence the accused in his statement recorded under Section 313 Cr.P.C. denied all the allegations.
Learned trial court based on these evidences on record came to the finding that the necessary ingredient of an existing legally enforceable debt or liability to constitute an offence under Section 138 N.I. Act was not established. The complainant had failed to show any details of the land for which he gave Rs.1,50,000/- to the accused whose address was even unknown to him and that he had met him on usual route to his workplace. The complainant was -3- silent as to how he has given huge amount of Rs.1,50,000/- to the accused and how such amount was arranged. The learned trial court also doubted the service of legal notice on the accused in terms of Section 138 Sub-clause (b) and (c) of the N.I. Act as the complainant did not know the address of the accused or where he stays. As such the complainant was held to have failed to prove his case beyond shadow of all reasonable doubts, thereby accused/opposite party no.2 was acquitted of the charges.
Learned counsel for the petitioner, in support of the prayer, submits that all the necessary ingredients for the offence under Section 138 N.I. Act i.e. the cheque issued by the accused, the return cheque memo issued by the Bank, the legal notice and the postal receipts showing giving of notice were exhibited during course of trial and supported through oral testimony of the complainant. Therefore, learned trial court fell in error in disbelieving the case of the complainant on the point of existence of legally enforceable debt or liability. The accused had appeared on summon on the same address on which the legal notice was sent, therefore there was no reason to doubt the ingredient of giving the notice in terms of Section 138(b) of the N.I. Act. The accused has been in the habit of duping innocent people like the complainant who are also illiterate. The matter therefore requires to be re-appreciated by the appellate court if special leave is granted.
Learned APP has opposed the prayer and defended the findings of the learned trial court.
Perused the impugned order and considered the submissions of the learned counsel for the parties in the light of the discussions made hereinabove.
The case of the accused/defence was of complete denial of all allegations including the liability. In such circumstances, the complainant had failed to establish the necessary ingredients of existence of a legally enforceable debt. As per the statements of the complainant, the accused appears to be a casual acquaintance in whose favour a substantial amount of Rs.1,50,000/- was allegedly paid by the complainant without any agreement to that effect being brought on record or necessary details of such agreement/plot of land, Khata no. etc. being disclosed to the Court during cross examination. Apart from the proof of the negotiable instrument/cheque;
-4-its return by the bank; giving of notice, etc. also is required proof of existence of a legally enforceable debt for coming to a finding of guilt of the accused under Section 138 of N.I. Act. Learned trial court having analyzed the evidence on record, found the necessary ingredients missing. As such, the complainant had failed to proof his case beyond shadow of all reasonable doubt leading to the acquittal.
In such circumstances, we do not find any ground made out to grant special leave to appeal to the petitioner to assail the findings before the appellate court. The instant petition stands dismissed.
(Aparesh Kumar Singh, J.) (Ratnaker Bhengra, J.) Shamim/