Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 923 (JHR)

Chhitarmal Agrawal v. State of Jharkhand

2014-09-01

AMITAV K.GUPTA, R.R.PRASAD

body2014
Order Heard learned counsel appearing for the petitioner and learned counsel for the opposite party No.2. 2. This petition has been filed under Section 378(4) of the Code of Criminal Procedure against the judgment and order dated 20.05.2010 passed in Complaint Case No.451 of 2006 whereby and whereunder the opposite party No.2 had been acquitted of the charge under Section 138 of the N.I. Act. 3. It is the case of the complainant that the accused, a retail dealer came to the shop of the complainant, a wholesale dealer of the food-grains and sugar, carrying on business in the name and style of M/s Chhinnamastika Enterprises on 12.12.2005 and purchased forty bags of sugar worth Rs.71,995/-on credit and in lieu of that, a cheque drawn on 21.12.2005 was given to the complainant. The said cheque on being deposited got dishonoured and, therefore, a legal notice dated 12.05.2006 was sent to the accused person. But that legal notice could not be served as the opposite party No.2 was in jail. 4. However, after being released from jail, the accused/opp. Party No.2 met with the complainant took back the said cheque which got dishonoured and issued a fresh cheque dated 01.07.2006 for a sum of RS.71,995/-. The said cheque when was deposited, it again got dishnoured. Again a legal notice was sent to which it was replied with stating therein that one Bhiku Agrawal, brother of the complainant, took Rs.1,00,000/-[One Lakh] from the accused and told that after the adjustment of the amount he will dispatch the food-grain for the balance amount of Rs.28,005/-, but when the goods were not received, the accused visited the complainant and asked for supplying good-grain then the complainant along with three brothers abused the accused/opposite party No.2. Thereupon the accused persons lodged a case against the complainant. 5. Thereupon the complainant lodged the case which was registered as Complaint Case No.451 of 2006. The complainant examined two witnesses whereas one defence witness was examined. 6. It be stated that the evidence of two witnesses, C.W. I and C.W.II had been recorded by the Magistrate, named as Manish Ranjan whereas evidence of defence witness was recorded by another Magistrate, namely, Dinesh Mishra, who after the examination of the witnesses, passed the order whereby the accused/opposite party No.2 was acquitted of the charge. 7. Being aggrieved with that order, this application has been filed. 7. Being aggrieved with that order, this application has been filed. The impugned order has been assailed on two grounds; first being that part of the evidence has been recorded by one Magistrate whereas another Magistrate who was successor in office recorded the evidence of rest of the witnesses and passed the judgment which is quite illegal as in a summary proceeding, only the Magistrate who records the entire evidence is competent to deliver the judgment. 8. The other ground on which this judgment and order is being assailed is that money receipt i.e. Ext. C on the basis of which this accused/opposite party No.2 claimed to have paid the amount, has failed to prove the signature of Bhiku Agrawal over the receipt which had been issued in the name of Suresh Bansal, the elder brother of the complainant and, therefore, in absence of signature over the Ext. C being proved on behalf of the defence, the court should not have taken into consideration the Ext.C by which defence of paying back the money had been taken and thereby, the court has committed illegality and, therefore, the impugned order is fit to be set aside. 9. As against this, Mr. Manish Kumar, learned counsel appearing for the opposite party No.2 submits that it is true that in a summary proceeding, the Magistrate who records the entire evidence is competent to deliver the judgment, but this principle is applicable in a situation where the evidence is recorded in substance and not verbatim, but here in the instance case, the evidence has been recorded verbatim and, therefore, the subsequent Magistrate can very well act on the evidence recorded by the previous Magistrate and in that event, the judgment and order would never suffer from any illegality. 10. Further, it was submitted that it was the case of the defence right from the very beginning even from before the lodgment of the case by the complainant that the amount which was due to be paid by accused/ opposite party No.2 to the complainant was paid to one Bhiku Agrawal, the brother of the complainant. The amount which was given to Bhiku Agrawal was excess than what was due to be paid by accused/opp. Party No.2 to the complainant by taking assurance that the complainant would be supplying food-grains worth Rs.28005/-which was paid in excess. The amount which was given to Bhiku Agrawal was excess than what was due to be paid by accused/opp. Party No.2 to the complainant by taking assurance that the complainant would be supplying food-grains worth Rs.28005/-which was paid in excess. When the food-grain was not supplied, a complaint case was lodged by the accused/Opp. Party No.2 against the complainant before the complainant had lodged this case and that money receipt under which the petitioner has placed his case had been proved in evidence and was marked as Ext.C. The court having taken into account those two facts did find that no money was due to be paid by the accused/opp. Party No.2 to the complainant and, therefore, passed the judgment whereby the accused/Opp. Party No.2 has been acquitted. 11. Having heard learned counsel appearing for the parties, we do not find any illegality with the judgment and order passed by the court below. So far as the first point is concerned, admittedly the evidence which was recorded by the previous Magistrate, was recorded in verbatim and not as a substance of the evidence and thereby, if the subsequent Magistrate has acted upon on such evidence recorded by the previous Magistrate, he did not commit any illegality. 12. Further on going through the judgment we do find that the trial court did accept the plea which has been taken by the defence and thereby, it did not commit any illegality in acquitting the opposite party/accused person. 13. Under the circumstances, we do not find any merit and hence, this petition stands dismissed. Petition dismissed.