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2006 DIGILAW 1962 (RAJ)

STATE OF RAJASTHAN v. VASAB ALI

2006-05-31

SATYA PRAKASH PATHAK

body2006
Judgment ( 1 ) THIS criminal leave to appeal under section 378 (iii) and (i) Cr. P. C. has been filed by the State against judgment and order dated 18. 10. 2005 passed by learned Additional Chief judicial Magistrate, Sri Ganganagar in Criminal case No. 488/01 (State Vs. Vasab Ali) whereby the accused respondent has been acquitted of the charge under Section 406 IPC. ( 2 ) THE facts of the case in brief are that a written report was filed by complainant ramesh Mittal on 02. 06. 2001 to the effect that he was dealing in business of vehicle financing and accused respondent requested him to finance a motorcycle on hire purchase basis. The complainant thereafter getting executed relevant documents financed motor cycle to the accused on hire purchase and paid sum of rs. 36,965/- through cheque, Shri Jagtar Singh stood guarantee for loan amount. The case of the prosecution is that after making payment of certain instalments, the accused respondent stopped making payment of instalment and finally sold the financed motorcycle to some other persons. ( 3 ) AFTER completion of investigation, challan was filed in the trial court and charge was framed against the accused respondent under sections 406 IPC. The accused denied the charge and claimed trial. In support of its case, prosecution examined 4 witnesses. After close of the prosecution evidence, in the statement recorded under Section 313 Cr. P. c. , the accused person denied the prosecution case and claimed to be innocent. In defence, no witness was examined. The learned trial court after hearing learned counsel for the parties, acquitted accused-respondent of the charge framed against him under Section 406 IPC vide its judgment dated 02. 06. 2001. Hence, the present criminal leave to appeal has been filed. ( 4 ) HEARD learned Public Prosecutor and carefully gone through the material available on record. ( 5 ) IT has been contended by learned public Prosecutor that the learned trial court has not properly appreciated the evidence available on record. He further submits that in the present case, the accused-respondent should be convicted. He further submitted that the appeal has been filed after delay of 17 days, that may also be condoned as the time was consumed in getting the sanction for filing this leave to appeal. ( 6 ) I have considered the submissions made before me. He further submits that in the present case, the accused-respondent should be convicted. He further submitted that the appeal has been filed after delay of 17 days, that may also be condoned as the time was consumed in getting the sanction for filing this leave to appeal. ( 6 ) I have considered the submissions made before me. ( 7 ) IN the present case, learned trial court found that no evidence was available on record to show that the motorcycle which was financed by the complainant was sold to third person and no document in this regard was produced to show that prima facie allegation of selling of the motorcycle to some other was correct. Learned trial court further came to the conclusion that not a sum of Rs. 36,905/-but a sum of Rs. 28,650/- was financed and out of this amount, a sum of Rs. 19,916/- was repaid by the accused respondent. Learned trial court further found that post dated cheques were given for re-payment of the financed amount in favour of the complainant and he admitted that no cheque was returned back on account of insufficient fund available in the SB Account from the Bank, therefore, the accused respondent was acquitted of the offence under section 406 IPC. ( 8 ) AFTER considering the entire matter, i am of the opinion that the prosecution has failed to prove the allegation for offence under Section 406 IPC and the learned trial court has correctly appreciated the evidence in this case. It was essential for the complainant to prove this aspect of the matter that after financing the amount, the accused sold the vehicle to some other person but this part has not been proved, therefore, the accused respondent cannot be convicted under section 406 IPC. It is also not in dispute that post dated cheques were given for recovery of the amount given by the accused to the complainant. It further appears that the appeal has also been filed after delay of 17 days and the reason advanced by learned Public prosecutor that sanction could not be obtained for filing the leave to appeal in time. The reason advanced cannot be said to be sufficient reason for condoning the delay. It further appears that the appeal has also been filed after delay of 17 days and the reason advanced by learned Public prosecutor that sanction could not be obtained for filing the leave to appeal in time. The reason advanced cannot be said to be sufficient reason for condoning the delay. ( 9 ) IN view of foregoing discussion, I do not find any illegality in the impugned judgment passed by the learned trial court after appreciating the entire evidence available on record. Hence, the leave to appeal is required to be rejected for two reasons; firstly that leave to appeal has been filed after delay of 17 days and secondly there is no merit in this case. Accordingly, the leave to appeal is rejected.