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2010 DIGILAW 387 (PNJ)

Baljit Singh v. Harvinder Singh

2010-01-15

SABINA

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Judgment Sabina, J. 1. The appellant-Baljit Singh had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 . Vide impugned judgment dated 29.5.2008, the accused was acquitted of the notice served upon him. Hence, the complainant has filed this application under Sec.378 (4) of the Code of criminal Procedure with the prayer for grant of leave to file an appeal against the order mentioned above. 2. The case of the complainant in brief, as noticed by the trial court in paragraph 1 of its judgment reads as under:- "The complainant has filed this complaint against the accused under Sec.138 of the Negotiable Instruments Act on the allegations that in order to discharge his liability towards the complainant with respect to payment of amount due from the accused to the complainant, the accused issued a cheque bearing No.138765 dated 22.6.2005 for Rs.35,000/- drawn on Punjab National Bank, tarn Taran, which was presented before the Punjab National Bank, Basant Avenue, amritsar, for encashment but the same was dishonoured by the bank of the accused and returned along with memo dated 20.12.2005 giving the reason thereon for dishonouring of the same as "insufficient funds" and as such, the accused has rendered himself liable to pay the amount of the cheque referred to above to the complainant. The dishonouring of the cheque shows dishonest and malafide intention on the part of the accused as he fully knew at the time of issuing the cheque that the same will be dishonoured. Therefore, the accused is liable for punishment for committing the offence under Sec.138 of the Negotiable instruments Act. It is stated in the complaint that at the time of issuance of the cheque aforesaid, the accused had given assurance and undertaking to the complainant that the cheque will be encashed as and when presented for payment and the complainant accepted the said cheque keeping in view the said assurance and undertaking to be bona fide. It is also stated that thereafter, the complainant served a legal notice under Sec.138 of the Negotiable instrument act on 16.1.2006 through registered AD cover and also through UPC and the notice was duly served upon the accused but he did not pay the amount of the cheque within the stipulated period of 15 days from the date of receipt of notice. Thus, furnishing a cause of action to the complainant under the provision of section 139 of the Negotiable Instrument Act." 3. After hearing learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed. 4. It has been noticed by the learned Magistrate in the judgment that the complainant had stated in his cross-examination that besides the present complaint there were two more complaints against the accused. He had given goods to the accused and had taken three cheques as a security. However, he did not know about any other cheque. Complainant further stated that he might have given cheque No.138768 to the accused but he did not recollect the same. The complainant had admitted that Ex. DX was filled in by him and he had signed the same and the total amount stated therein was correct. He also admitted that cheque No.138765 was written on the said cheque. 5. In these circumstances, the learned Magistrate has rightly come to the conclusion that there were business transaction between the parties and the complainant took four cheques as security from the accused. Last cheque bearing No.138768 (Ex. DY) was returned to the accused. The chque amount in dispute is Rs.35,000/- which apparently has been repaid vide Ex. DX. In the present case, the accused had been successful in rebutting the presumption in favour of the holder of the cheuqe. 6. Their Lordship of the Supreme Court in Allarakha K. Mansuri V/s. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the court. 7. A Division Bench of this Court, in State of Punjab V/s. Hansa singh 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:- "we are of the opinion that the matter would have to be examined in the light of the observations of the Honble Supreme Court in ashok Kumar V/s. State of Rajasthan, 1991 (1) SCC 166, which are the interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellant court was inclined to take a different view, could not be a reason calling for interference." 8. Learned counsel has failed to show any mis-reading of evidence on record. No ground is made out to grant leave to file an appeal. 9. Accordingly, this application is dismissed.