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2011 DIGILAW 1052 (JHR)

Syed Isteyaque Ali v. State of Jharkhand

2011-12-02

H.C.MISHRA

body2011
JUDGMENT H.C. Mishra, J.-Heard learned counsel for both the sides. 2. This appeal is directed against the judgment of acquittal dated 10th April, 2000 passed by Shri Narad Pandey, Judicial Magistrate, 1st Class, Jamshedpur, in C/1 Case No. 174 of 1997, whereby the respondent no. 2, who was put on trial for the offence under Section 138 of the Negotiable Instruments Act, has been acquitted of the acquisition. 3. According to the case of the complainant, as disclosed in the complaint petition filed in the Court below, the accused Sk. Hasmat took a friendly loan of Rs. 6,25,000/- from the complainant on different dates between January 1996 to May 1996 with a promise to pay back the same within a year. Out of the said amount, Rs. 1,00,000/- was paid back by the accused and against the balance of Rs. 5,25,000/-, the accused gave the complainant a cheque bearing no. 253784 dated 15.9.1996 of Rs. 50,000/- drawn upon State Bank of India, Mango Branch, Jamshedpur. The said cheque was presented by the complainant in State Bank of India, Mango Branch, Jamshedpur, but the same was dishonoured vide Memo dated 18.9.1996, due to insufficient fund in the account of accused. However, when the complainant informed the accused about the dishonour of the cheque, the accused apologized to the complainant and he issued one more cheque bearing no. 253785 dated 10.10.1996 for Rs. 50,000/- against the remaining outstanding dues to the complaint and requested the complainant to produce both the cheques in the Bank on 10.10.1996 assuring .that both the cheques would be encashed. Before the presentation of the cheques in the Bank, the accused again requested the complainant to produce the cheques in the Bank on 20.2.1997. Accordingly, both the cheques were presented by the complainant in the Bank on 24.2.1997, but again both the cheques were dishonoured, due to insufficient balance vide Memo dated 24.2.1997. Accordingly, a Legal Notice was given by the complainant to the accused on 10.3.1997 making demand of the amount, but upon the failure of the accused, the complaint petition was filed in the Court below, which was numbered as C/1 Case No. 174 of 1997. 4. It appears from the record that upon examination of the complainant on solemn affirmation, the case was found prima facie true against the accused and summons were issued to the accused. 4. It appears from the record that upon examination of the complainant on solemn affirmation, the case was found prima facie true against the accused and summons were issued to the accused. It further appears that charge was framed for the offence under Section 420 of the Indian Penal Code as also under Section 138 of the Negotiable Instruments Act on 2.11.1998 and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In the Court below evidences were adduced on behalf of both sides and ultimately, the judgment of acquittal was passed by the Court below on 10th April, 2000, acquitting the accused of the charges. 5. Learned counsel for the appellant-complainant has submitted that in the Court below, the appellant had proved the cheques issued to him, which were marked as Exhibits-1 and 1/1, the Return Memos of the Bank, which were marked as Exhibits-2, 2/1 and 2/2, the Legal Notice which was marked as Exhibit-3 and the acknowledgment thereof was marked as Exhibit-3/1 and these documents clearly show that the appellant complied with all the necessary requirements making out the offence under Section 138 of the Negotiable Instruments Act, well within time. Learned counsel has accordingly submitted that the impugned judgment of acquittal passed by the Court below is absolutely illegal and against the records and is fit to be set aside. 6. Learned counsel for the respondent-accused, on the other hand, submitted that the respondent has been rightly acquitted by the Court below. It has been submitted that according to the complaint petition itself, the loan was advanced by the complainant to the accused on several dates, but the complainant is not having any license under the Money Lenders Act and as such, the debt, if any, was illegal and not enforceable. Learned counsel has thus submitted that there is no illegality in the judgment of acquittal passed by the Court below. 7. I have gone through the records. From perusal of the records, I find that according to the complainant's case, as laid down in the complaint petition, the complainant had given a friendly loan of Rs. 6,25,000/- to the accused. In the complaint petition, there is nothing to show that there was any business transaction between the parties, in which, the money was ever advanced by the complainant to the accused. 6,25,000/- to the accused. In the complaint petition, there is nothing to show that there was any business transaction between the parties, in which, the money was ever advanced by the complainant to the accused. This apart, the complainant has not stated in his complaint petition that he is the owner of any Nisha Roadways. However, in his deposition as C.W. 1, the complainant has stated that he is the owner of Nisha Roadways and he had also business terms with accused Sk. Hasmat. In his deposition, the complainant has again stated that he had given friendly loan to the accused Sk. Hasmat. However, the cheques which have been brought on record and proved as Exhibits-1 and 1/1, clearly show that they were not issued in the name of the complainant Syed Isteyaque Ali, rather, the said cheques were issued in the name of Nisha Roadways. The issuance of the cheques in the name of Nisha Roadways clearly demolishes the case of the complainant that the cheques were issued in his favour. If the complainant's case is to be believed to be true, it was a friendly loan, not connected with any business transaction between the parties, which had to be repaid in the name of the complainant and not in the name of any business concern. The presentation of the cheques in the Bank are also very doubtful, inasmuch as, there is no endorsement on cheques of any employee of the Bank and this fact stands admitted in the cross-examination as C.W. 2, who is the Assistant Manager of State Bank of India, Mango Branch, Jamshedpur. He has admitted in his cross-examination that there is no endorsement of the Bank in both the cheques, nor there is any signature of any employee of the Bank. He could not also say as to before whom the cheques were produced. 8. In view of the aforementioned infirmities in the cheques, i.e., cheques were not drawn in the name of the complainant, as also the presentation of the cheques in the Bank was very doubtful, in my considered view, the complainant has failed to prove his case making out the offence under Section 138 of the Negotiable Instruments Act against the respondent accused and the Court below was absolutely right in acquitting the accused. 9. 9. In the facts and circumstances of the case, I do not find any illegality in the judgment of acquittal passed by the Court below, warranting any interference by this Court. Accordingly, there is no merit in this appeal and the same is, hereby, dismissed.