Rajesh Kumar v. Sunil Kumar) under Section

1. Heard learned counsel appearing for the appellant-complainant and perused the record.

2. Present Criminal appeal has been preferred against the judgement and order dated 21.05.2024 passed by Presiding Officer, Additional Court, Saharanpur in Complaint Case No.1033 of 2017, under Section 138 of Negotiable Instruments Act, Police Station Rampur Maniharan, District Saharanpur.

3. Prosecution story, in nutshell is that in the month of October, 2015 the opposite party no.2 borrowed Rs.1,90,000/- from the complainant in the presence of two witnesses Rajendra and Vikas and promised to repay the loan amount within 18 months but he failed to repay the loan amount. Thereafter the opposite party no.2 issued a Cheque No. 423023 dated 02.08.2017 amounting to Rs. 1,90,000/- in favour of the complainant. He presented the cheque for encashment before his banker but the cheque was dishonoured and returned back unpaid with a bank memo dated 05.09.2017 showing the cause of dishonour “Kindly contact Drawer/Drawee Bank and please present again.” Thereafter on 08.09.2017, the complainant sent a legal notice to the opposite party no. 2 to pay the aforesaid amount within 15 days of the service of the notice. Notice was served upon the opposite party no.2 but he did not pay the cheque amount. In these circumstances, on 27.09.2017, the complainant filed a complaint against the opposite party no. 2 before the Court of Additional Court, Saharanpur as Case Crime No. 1033 of 2017 (Rajesh Kumar vs. Sunil Kumar) under Section 138 Negotiable Instruments Act. Thereafter the statement of the complainant was recorded under section 200 Cr.P.C. and the opposite party no. 2 was summoned under Section 138 N.I. Act to face trial. After considering 2 the material on record, the learned trial Court acquitted the opposite party no.2 on 21.05.2025. Hence, the present criminal appeal.

4. In support of the prosecution case; PW-1 Complainant- Rajesh Kumar; PW-2 Rajendra; PW-3 Vikas; PW-4 Amit Kumar, Assistant Manager UCO Bank; PW-5 Nirbhay Singh, Assistant Manager Union Bank of India were produced and examined before the Court below.

5. In addition to this, the prosecution has produced six documents which were exhibited during the trial as under: (i) Detail of Cheque as Ex.A-1 (ii) Bank Memo Dated 05.09.2027 as Ext. A-2, (iii) Copy of legal notice as Ext. A-3, (iv) Registered Postal Receipt dated 08.09.2017 as Ext. A-4, (v) Copy of the statement of Account No. 11130110023273 as Ext. A-5, (vi) Copy of the statement of Account No. 476902010002511 as Ext. A-6.

6. TESTIMONY OF WITNESSES P.W.-1 The complainant Rajesh Kumar in his evidence has reiterated the story as set out in the complaint and proved it as Exhibit Ka A-5. P.W.-2 Rajendra deposed that the accused borrowed a sum of Rs. 1,90,000/- from the complainant in his presence. P.W.-3 Vikas who was also an eye witness deposed that the accused in order to refund above-mentioned amount had issued the cheque in dispute in favour of the complainant. He also deposed that the accused had borrowed a sum of Rs.1,90,000/- from the complainant in his presence. He also deposed that the accused in order to refund above- mentioned amount had issued the cheque in dispute in favour of the complainant. P.W.4 Amit Kumar, The Assistant Manager UCO Bank deposed that the accused was maintaining A/C No.11130110023273 in his Branch and had proved his statement of account as Ex.A-6. He further deposed that in the aforesaid account of the accused maximum balance was Rs.45,000/- only. He had also proved the bank-memo (Ex.A-2) saying that it was issued on behalf of his Bank, in respect to the cheque in dispute. P.W.5 Nirbhay Singh, the Assistant Manager Union Bank of India deposed that the complainant was maintaining A/C No.476902010002511 in Union Bank of India, Branch Railway Road, Saharanpur and on 07.09.2017 the cheque in dispute bearing No. 423023 was presented for encashment in this Branch but on 08.09.2017 it was dishonoured and 3 returned back with a bank memo showing cause of dishonour as “Kindly contact drawer/Drawee Bank and please present again.” In his statement recorded under Section 313 of Criminal Procedure 7. Code on 10.12.2019 the accused had deposed that he never borrowed any amount from the complainant. The cheque in dispute though bears his signature, but he never issued it in favour of the complainant. Except signature remaining entries are not in his handwriting. He has admitted service of the legal notice. According to him the witness (PW- 2) Rajendra and Vikas (PW-3) have deposed falsely. He has specifically stated that he never borrowed a sum of Rs. 190,000/- from the complainant. The complainant had taken three signed blank cheques from him saying that he would get the loan sanctioned for him but he after misusing one of them has filed the present complaint averring altogether false averments.

8. Subsequently the complainant moved an application under Section 311 Criminal Procedure Code which was allowed vide order dated 22.03.2021 and thereafter statement of PW-4 Shri Amit Kumar and PW- 5 Nirbhay Singh were recorded. Therefore again statement of accused under Section 313 Criminal Procedure Code was recorded on 27.06.2023. In his statement the accused has reiterated his earlier stand and in respect of both bank employees PW-4 and PW-5 has said that he has nothing to say about the statement of both bank employees.

9. In his defence the accused has examined following four witnesses-

1. DW-1 Sunil Kumar (the complainant)

2. DW-2- Shri Ompal,

3. DW-3- Preetam Singh and

4. DW-4- Sonu Kumar In support of his arguments the learned defence counsel has also

10. cited following precedents-

1. Anss Rajshekhar vs. Augustus Jeba Ananth 2020 (1) JIC Reports 81 (SC)

2. K. Subramani vs K. Damodar Naidu (2015)1 J. Cr. C. 36 (SC)

3. Kanhaiya Lal and another vs. State of UP (2010)2 J. Cr. C. 1093 (All)

4. Padma Gupta vs. State of UP (2013)2 J. Cr. C. 1664 (All)

5. Ram Chandra Agarwal vs. State of UP (2013)1 J. Cr. C. 494 (All) 4

11. In order to prove the legal ingredient of Section 138 of Negotiable Instruments Act, total seven issues were decided. As the complainant was not able to prove the issue nos. 2, 6 and 7, therefore, all the legal ingredients of Section 138 of N.I. Act could not be established. While deciding the issue nos. 2, 6 and 7, learned Trial Court on careful consideration of the oral and documentary evidence and all materials available on record, came to the conclusion that the complainant was not able to prove the existence of any debt or liability of the accused and therefore, the accused was not obliged to pay the cheque amount. So it cannot be said that the cheque in dispute was issued by the accused in order to discharge the legal recoverable debt or liability and further despite service of legal notice, the accused was not bond to pay the cheque amount. Therefore, despite service of legal notice, non payment of cheque amount would not confer any cause of action in favour of the complainant.

12. Learned Trial Judge after recording the statements of all witnesses and looking into the matter, came to the conclusion that the prosecution has miserably failed to establish its own case or involvement of accused persons beyond any reasonable doubt and consequently after giving the benefit of doubt exonerated the accused respondents from the charges under section 138 N.I. Act.

13. Challenging the impugned judgment, learned counsel for the complainant submits that the judgement is perverse and illegal in nature and order of acquittal passed by the trial Court requires fresh consideration and reversal and the accused respondent is liable to be convicted.

14. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

15. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities" 5

16. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

17. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

18. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

19. On perusal of record, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.

20. Accordingly, it is not a case worth granting special leave to appeal. The application for granting special leave to appeal is rejected. Re: Application u/s 378(4) Cr.P.C.

1. Consequently, since the Criminal Misc. Application (Special Leave to Appeal) is rejected by order of date, the present appeal under Section 378(4) Cr.P.C., is also dismissed. Order Date :- 8.1.2025 Monika/A.N. Mishra MONIKA KESARWANI High Court of Judicature at Allahabad

1. Heard learned counsel appearing for the appellant-complainant and perused the record.

2. Present Criminal appeal has been preferred against the judgement and order dated 21.05.2024 passed by Presiding Officer, Additional Court, Saharanpur in Complaint Case No.1033 of 2017, under Section 138 of Negotiable Instruments Act, Police Station Rampur Maniharan, District Saharanpur.

3. Prosecution story, in nutshell is that in the month of October, 2015 the opposite party no.2 borrowed Rs.1,90,000/- from the complainant in the presence of two witnesses Rajendra and Vikas and promised to repay the loan amount within 18 months but he failed to repay the loan amount. Thereafter the opposite party no.2 issued a Cheque No. 423023 dated 02.08.2017 amounting to Rs. 1,90,000/- in favour of the complainant. He presented the cheque for encashment before his banker but the cheque was dishonoured and returned back unpaid with a bank memo dated 05.09.2017 showing the cause of dishonour “Kindly contact Drawer/Drawee Bank and please present again.” Thereafter on 08.09.2017, the complainant sent a legal notice to the opposite party no. 2 to pay the aforesaid amount within 15 days of the service of the notice. Notice was served upon the opposite party no.2 but he did not pay the cheque amount. In these circumstances, on 27.09.2017, the complainant filed a complaint against the opposite party no. 2 before the Court of Additional Court, Saharanpur as Case Crime No. 1033 of 2017 (Rajesh Kumar vs. Sunil Kumar) under Section 138 Negotiable Instruments Act. Thereafter the statement of the complainant was recorded under section 200 Cr.P.C. and the opposite party no. 2 was summoned under Section 138 N.I. Act to face trial. After considering 2 the material on record, the learned trial Court acquitted the opposite party no.2 on 21.05.2025. Hence, the present criminal appeal.

4. In support of the prosecution case; PW-1 Complainant- Rajesh Kumar; PW-2 Rajendra; PW-3 Vikas; PW-4 Amit Kumar, Assistant Manager UCO Bank; PW-5 Nirbhay Singh, Assistant Manager Union Bank of India were produced and examined before the Court below.

5. In addition to this, the prosecution has produced six documents which were exhibited during the trial as under: (i) Detail of Cheque as Ex.A-1 (ii) Bank Memo Dated 05.09.2027 as Ext. A-2, (iii) Copy of legal notice as Ext. A-3, (iv) Registered Postal Receipt dated 08.09.2017 as Ext. A-4, (v) Copy of the statement of Account No. 11130110023273 as Ext. A-5, (vi) Copy of the statement of Account No. 476902010002511 as Ext. A-6.

6. TESTIMONY OF WITNESSES P.W.-1 The complainant Rajesh Kumar in his evidence has reiterated the story as set out in the complaint and proved it as Exhibit Ka A-5. P.W.-2 Rajendra deposed that the accused borrowed a sum of Rs. 1,90,000/- from the complainant in his presence. P.W.-3 Vikas who was also an eye witness deposed that the accused in order to refund above-mentioned amount had issued the cheque in dispute in favour of the complainant. He also deposed that the accused had borrowed a sum of Rs.1,90,000/- from the complainant in his presence. He also deposed that the accused in order to refund above- mentioned amount had issued the cheque in dispute in favour of the complainant. P.W.4 Amit Kumar, The Assistant Manager UCO Bank deposed that the accused was maintaining A/C No.11130110023273 in his Branch and had proved his statement of account as Ex.A-6. He further deposed that in the aforesaid account of the accused maximum balance was Rs.45,000/- only. He had also proved the bank-memo (Ex.A-2) saying that it was issued on behalf of his Bank, in respect to the cheque in dispute. P.W.5 Nirbhay Singh, the Assistant Manager Union Bank of India deposed that the complainant was maintaining A/C No.476902010002511 in Union Bank of India, Branch Railway Road, Saharanpur and on 07.09.2017 the cheque in dispute bearing No. 423023 was presented for encashment in this Branch but on 08.09.2017 it was dishonoured and 3 returned back with a bank memo showing cause of dishonour as “Kindly contact drawer/Drawee Bank and please present again.” In his statement recorded under Section 313 of Criminal Procedure 7. Code on 10.12.2019 the accused had deposed that he never borrowed any amount from the complainant. The cheque in dispute though bears his signature, but he never issued it in favour of the complainant. Except signature remaining entries are not in his handwriting. He has admitted service of the legal notice. According to him the witness (PW- 2) Rajendra and Vikas (PW-3) have deposed falsely. He has specifically stated that he never borrowed a sum of Rs. 190,000/- from the complainant. The complainant had taken three signed blank cheques from him saying that he would get the loan sanctioned for him but he after misusing one of them has filed the present complaint averring altogether false averments.

8. Subsequently the complainant moved an application under Section 311 Criminal Procedure Code which was allowed vide order dated 22.03.2021 and thereafter statement of PW-4 Shri Amit Kumar and PW- 5 Nirbhay Singh were recorded. Therefore again statement of accused under Section 313 Criminal Procedure Code was recorded on 27.06.2023. In his statement the accused has reiterated his earlier stand and in respect of both bank employees PW-4 and PW-5 has said that he has nothing to say about the statement of both bank employees.

9. In his defence the accused has examined following four witnesses-

1. DW-1 Sunil Kumar (the complainant)

2. DW-2- Shri Ompal,

3. DW-3- Preetam Singh and

4. DW-4- Sonu Kumar In support of his arguments the learned defence counsel has also

10. cited following precedents-

1. Anss Rajshekhar vs. Augustus Jeba Ananth 2020 (1) JIC Reports 81 (SC)

2. K. Subramani vs K. Damodar Naidu (2015)1 J. Cr. C. 36 (SC)

3. Kanhaiya Lal and another vs. State of UP (2010)2 J. Cr. C. 1093 (All)

4. Padma Gupta vs. State of UP (2013)2 J. Cr. C. 1664 (All)

5. Ram Chandra Agarwal vs. State of UP (2013)1 J. Cr. C. 494 (All) 4

11. In order to prove the legal ingredient of Section 138 of Negotiable Instruments Act, total seven issues were decided. As the complainant was not able to prove the issue nos. 2, 6 and 7, therefore, all the legal ingredients of Section 138 of N.I. Act could not be established. While deciding the issue nos. 2, 6 and 7, learned Trial Court on careful consideration of the oral and documentary evidence and all materials available on record, came to the conclusion that the complainant was not able to prove the existence of any debt or liability of the accused and therefore, the accused was not obliged to pay the cheque amount. So it cannot be said that the cheque in dispute was issued by the accused in order to discharge the legal recoverable debt or liability and further despite service of legal notice, the accused was not bond to pay the cheque amount. Therefore, despite service of legal notice, non payment of cheque amount would not confer any cause of action in favour of the complainant.

12. Learned Trial Judge after recording the statements of all witnesses and looking into the matter, came to the conclusion that the prosecution has miserably failed to establish its own case or involvement of accused persons beyond any reasonable doubt and consequently after giving the benefit of doubt exonerated the accused respondents from the charges under section 138 N.I. Act.

13. Challenging the impugned judgment, learned counsel for the complainant submits that the judgement is perverse and illegal in nature and order of acquittal passed by the trial Court requires fresh consideration and reversal and the accused respondent is liable to be convicted.

14. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

15. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities" 5

16. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

17. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

18. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

19. On perusal of record, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.

20. Accordingly, it is not a case worth granting special leave to appeal. The application for granting special leave to appeal is rejected. Re: Application u/s 378(4) Cr.P.C.

1. Consequently, since the Criminal Misc. Application (Special Leave to Appeal) is rejected by order of date, the present appeal under Section 378(4) Cr.P.C., is also dismissed. Order Date :- 8.1.2025 Monika/A.N. Mishra MONIKA KESARWANI High Court of Judicature at Allahabad