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2010 DIGILAW 2908 (PNJ)

Transport Wings (Cal) Pvt. Ltd. v. Shamsher Singh

2010-10-13

JITENDRA CHAUHAN, SATISH KUMAR MITTAL

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JUDGMENT Mr. Satish Kumar Mittal , J.:- Transport Wings (Cal) Pvt. Ltd. has filed this application seeking leave to appeal against the judgment dated 12.12.2009, passed by the court of Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, whereby accused Shamsher Singh (respondent herein) has been acquitted of the charges under Sections 379, 467, 468, 471 read with Section 120-B IPC. 2. In the present case, the applicant company through its Branch Manager Sanjay Sharma had filed a complaint against its earlier Branch Manager Vijay Kumar (declared proclaimed offender by the trial court vide order dated 6.5.2008) and respondent Shamsher Singh, on the allegations that for the smooth and proper functioning of the Yamuna Nagar branch of the applicant company, Vijay Kumar, being Branch Manager of the company, was having certain confidential documents of the company and blank cheques, bearing signatures of the Managing Director of the company, without any date and amount. Subsequently, Sanjay Sharma, took over the charge of the office of Branch Manager at Branch Office, Yamuna Nagar, and immediatley thereafter, he found that three blank cheques (bearing No. 525326, 525316 and 525342) of the Oriental Bank of Commerce, Yamuna Nagar, having no date and amount, bearing the signatures of the Managing Director of the company, were missing, regarding which there was no entry in the account books of the company. The fact regarding the mis-placement of those three cheques was informed to the bank authorities with a request not to honour those cheques and DDR was also lodged in Police Station City, Yamuna Nagar. It is the further case of the complainant company that thereafter, it received a notice dated 7.12.1999 issued by the respondent through his counsel regarding dishonouring of cheque bearing No. 525326 dated 30.5.1999 for a sum of ‘ one lac and thereafter, regarding the said cheque, the respondent filed a criminal complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’), which was lateron dismissed as infructuous, as the Managing Director, who had signed the said cheque, had expired. A similar notice regarding another cheque bearing No. 525342, allegedly issued on 24.7.1999, was received by the applicant company, which was duly replied. A similar notice regarding another cheque bearing No. 525342, allegedly issued on 24.7.1999, was received by the applicant company, which was duly replied. It was further alleged by the applicant company that with dishonest and malafide intention, regarding the cheque No. 525326, the respondent again served a notice dated 18.7.2001 upon the applicant company and the legal heirs of its deceased Managing Director. The case of the applicant company is that at the time, when accused No.1 Vijay Kumar left the services of the company, he had stolen the cheques and in furtherance of his illegal activities, he hatched a criminal conspiracy with the respondent and fabricated the aforesaid two cheques. 3. After completion of the preliminary evidence, Vijay Kumar and the respondent were summoned under Sections 379, 467, 468, 471 read with Section 120-B IPC. In the pre-charge evidence, the applicant company examined CW.1 Surender Singh HC, CW.2 Purshotam Singla and CW.3 Meena Ahlmad. After conclusion of the pre-charge evidence, both the accused in the complaint were charge-sheeted for the aforesaid offences, to which they did not plead guilty and claimed trial. After the framing of charge, CW.2 Purshotam Singla was further cross-examined. 4. CW.1 Surender Singh HC had brought DDR No. 33 dated 9.2.1999 and copy of letter dated 7.1.2004 and stated that record of DDR has been destroyed, because such record is destroyed after 10 years. 5. CW.2 Purshotam Singla proved the company’s certificate of incorporation (Mark G), memorandum of association (Mark H), Article of Association (Mark J) and Form 32 (Mark K) 6. In his statement under Section 313 Cr.P.C., the respondent denied all the allegations appearing against him in the evidence and pleaded innocence. However, he did not examine any witness in his defence. 7. The trial court, after considering the evidence and the documents available on the record, while coming to the conclusion that the theft of cheques and the forgery has not been proved, acquitted the respondent. 8. After hearing learned counsel for the applicant-complainant and going through the impugned judgment, we are of the opinion that the instant case is not a fit case, where leave to appeal is to be granted. 9. 8. After hearing learned counsel for the applicant-complainant and going through the impugned judgment, we are of the opinion that the instant case is not a fit case, where leave to appeal is to be granted. 9. In the present case, the trial court, after appreciating the evidence led by the complainant company, came to the conclusion that the complainant has failed to prove that three cheques were stolen by accused No.1 Vijay Kumar in conspiracy with accused No.2 Shamsher Singh (respondent herein). The trial court has come to this conclusion on the basis of material contradictions between the version recorded in the DDR, which alleged to have been initially lodged after the loss of three cheques and the version given in the complaint. Secondly, it was found that the three cheques, which alleged to have been stolen, were not in the same sequence and it is highly improbable for a person to remove cheques from different cheque books. The trial court further came to the conclusion that the complainant has also failed to prove that the accused had forged these cheques and thereafter presented the same for encashment. The trial court has reached to this conclusion, because the complainant company did not lead any evidence to prove that the cheques were filled by the accused. It also does not stand to reason that why the Managing Director of the company will keep all his blank cheque books signed. When three cheques were having different series of different cheque books, then it appears that the complainant company has filed the instant complaint in order to take a stand in the prosecution launched against it under Section 138 of the Negotiable Instruments Act. Thus, in the facts and circumstances of the case, the trial court has rightly acquitted the respondent. 10. After considering all the aforesaid factors, we are of the opinion that the view taken by the trial court is one of the possible view, which can be taken from the evidence led by the complainant company in the instant case. It cannot be said that the view taken by the trial court, while acquitting the respondent-accused, is totally perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. It cannot be said that the view taken by the trial court, while acquitting the respondent-accused, is totally perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. 11. In view of the aforesaid discussion, we do not find any ground to grant leave to appeal. 12. Dismissed. ——————————