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2010 DIGILAW 2705 (PNJ)

Parmesh Kumar Garg v. Anil Kumar Sakuja

2010-09-20

K.C.PURI

body2010
JUDGMENT K.C. PURI, J. This is an appeal directed by complainant against the judgment dated 12.5.2008 passed by Shri Vijay Singh, Additional Chief Judicial Magistrate, Yamuna Nagar at Jagadhri vide which the complaint filed by him against Anil Kumar Sakuja under Sections 138 and 142 of the Negotiable Instruments Act ( in short – the N.I. Act ) was dismissed. Parmesh Kumar Garg complainant now applicant filed complaint under Section 138 and 142 of the N.I. Act read with Section 420 of the Indian Penal Code against the accused on the allegations that accused owed Rs.1,00,000/-to him and in order to discharge his liability, respondent has issued a post dated cheque bearing No.008311 dated 26.6.2004 drawn on Central Bank of India, Jagdhari. The said cheque was presented for encashment through his banker Bank of Baroda, Jagadhri but the same was dishonoured on account of “account closed” and the bank returned to him the cheque vide memo dated 29.6.2004. Therefore, he served a registered AD notice on the respondent through his power of attorney Shri G.D. Gupta on 13.7.2004 but posted on 15.7.2004, which was received by the accused but he did not make the payment, hence the complaint. The complainant in preliminary evidence himself appeared as CW-1 and tendered his affidavit Ex.CW1/A. Thereafter, the complainant closed his preliminary evidence. On the basis of preliminary evidence, the accused was ordered to be summoned to face trial under Section 138 of the N.I. Act vide order dated 1.10.2004. On finding a prima facie case against the accused he was accordingly served with notice of the accusation for the offence under Section 138 of the N.I. Act vide order dated 25.2.2005, to which the respondent pleaded not guilty and claimed trial. The complainant appeared as CW-3 and also examined as CW1 Bharat Bhushan Sharma Clerk and CW-2 Mehar Singh clerk and closed the evidence. The accused was examined under Section 313 of the Code of Criminal Procedure and he denied all the allegations. The accused was called upon to lead his defence evidence and he examined Lalit Sharma as DW-1 and Surinder Kumar as DW-2 and closed his evidence after tendering certain documents. The trial Court after appraisal of the evidence dismissed the complaint by holding that complainant has failed to prove legal liability against of the respondent. The accused was called upon to lead his defence evidence and he examined Lalit Sharma as DW-1 and Surinder Kumar as DW-2 and closed his evidence after tendering certain documents. The trial Court after appraisal of the evidence dismissed the complaint by holding that complainant has failed to prove legal liability against of the respondent. In fact, cheque was in favour of Vinod Kumar employer of complainant and the complainant has been used as a tool to file the present complaint. Feeling dis-satisfied with the above said judgment of acquittal dated 12.5.2008 passed by the learned Additional Chief Judicial Magistrate, Yamuna Nagar at Jagadhri, the present appeal has been preferred by the complainant/appellant. Along with the appeal, an application for leave to appeal has also been filed. Learned counsel for the appellant has submitted that cheque in question was issued by the respondent in favour of the complainant in discharge of the debts. The said amount of cheque was not paid and the cheque was dishonoured. Subsequently, legal notice was issued to the respondent and in spite of that the amount was not paid. It is contended that the finding of the trial Court that the complainant has been used as a tool is wrong on the face of it. The trial Court has not properly appreciated the evidence in this regard. So, the prayer has been made for granting leave to appeal and for acceptance of the appeal. I have carefully considered the said submission but do not find any force in that submission. The trial Court has discussed the whole case in para No.16 to 25 of the judgment and arrived at the conclusion that complainant has failed to prove any legal liability against accused. The trial Court has rightly held that complainant has been used as a tool by his employer Vinod Kumar. The complainant was drawing only Rs.2500/-per month as salary from Vinod Kumar. The trial Court has rightly held that the complainant is not in a position to lend Rs.1,00,000/-out of his meager amount of salary. The trial Court has rightly gone into the aspect of legal notice issued to the respondent. According to the complainant, he appointed G.D. Gupta as his attorney in the month of August 2004. The notice was stated to be issued in the month of July 2004 when G.D. Gupta was not a power of attorney of the complainant. The trial Court has rightly gone into the aspect of legal notice issued to the respondent. According to the complainant, he appointed G.D. Gupta as his attorney in the month of August 2004. The notice was stated to be issued in the month of July 2004 when G.D. Gupta was not a power of attorney of the complainant. The complainant has stated that he does not know even G.D. Gupta. So, in these circumstances, there was no occasion for G.D. Gupta to appoint him as his attorney. The reason given in the power of attorney is that he is less qualified. That fact was also found to be wrong. The High Court in an appeal against acquittal can only interferred if the trial Court has committed any illegality in passing the judgment or the judgment is perverse. There is nothing on the record to establish that the judgment of the trial Court is illegal and perverse. The trial Court has discussed the whole evidence in its right prospective. Consequently, the present application is without any merit and the same stands dismissed. Consequently, the appeal also stands dismissed.