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2016 DIGILAW 1139 (MP)

Awdhesh Singh v. Sanjay Moghe

2016-12-13

C.V.SIRPURKAR

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JUDGMENT : C.V. Sirpurkar, J. 1. This is a criminal appeal against acquittal filed on behalf of the complainant. It is directed against the order dated 07.08.2009 passed by the Court of JMFC, Bhopal in criminal case no. 13655/2007. 2. This is a peculiar case. In the operating paragraphs of the impugned judgment, it has been observed that the offence under Section 138 of the Negotiable Instruments Act, 1881 is found to have been proved against the accused and the bail bonds of the accused were discharged but no order convicting the accused was passed and no sentence was imposed. 3. A perusal of the impugned judgment reveals that the respondent/accused Sanjay and his wife had borrowed Rs. 3,50,000/- from complainant Awdhesh Singh on the condition that they would return the same in 4 to 5 months. In respect of aforesaid amount, the accused had issued 3 cheques, one in the sum of Rs. 2 lacs and two in the sum of Rs. 50,000/- each on 19.09.2007. When the cheque in the sum of Rs. 50,000/- was presented to the bank, it was returned with an endorsement that the concerned account has been closed. The complainant issued a notice through his Advocate on 28.09.2007, which was served upon the accused; however, no amount was paid. Consequently, this complaint was filed within the period of limitation. 4. After the trial, the impugned judgment was passed. In paragraph no. 9 of the judgment, the trial Court observed that the complainant has admitted in paragraph no. 9 of his cross-examination that there were transactions between the parties and cheques were given by way of security. In paragraph no. 10, it was observed that though the complainant has admitted that the cheques were given by way of security but from aforesaid admission, no unequivocal inference can be drawn to the effect that the cheque in question was given with the understanding that under no circumstances would it be presented for encashment. In paragraph no. 15, it was held that it has been proved that the cheque was given by way of security. In paragraph no. 19, it has been held that it has been proved in the circumstances of the case that the cheque in question was given by the accused to the complainant in discharge of legally recoverable debt. In paragraph no. 15, it was held that it has been proved that the cheque was given by way of security. In paragraph no. 19, it has been held that it has been proved in the circumstances of the case that the cheque in question was given by the accused to the complainant in discharge of legally recoverable debt. In paragraph no. 21, it has been held since the cheque could not be honoured because the complainant had closed the account, it would constitute dishonour of the cheque. In paragraph no. 24, a finding was given that notice was duly served upon the accused but he did not pay the amount of Rs. 50,000/-. 5. From aforesaid findings, it appears that learned Magistrate was of the view that the offence against the accused under section 138 of the Negotiable Instruments Act has been proved. As already observed, in paragraph no. 26 also, a finding was recorded that the offence under Section 138 of the Negotiable Instruments Act was proved but curiously in paragraph no. 25 of the judgment, it has been recorded that though it has been proved that the cheque was executed in discharge of a debt but dishonour of the cheque is not proved. 6. In aforesaid circumstances, this court finds itself in a strange situation it is not ascertainable whether it is a judgment of acquittal or that of conviction. From individual findings recorded in the judgment, it appears to be a judgment proceedings towards conviction; however, conviction of the accused has not been categorically recorded. Moreover, no sentence of imprisonment, fine or compensation has been passed. 7. Since, no clear judgment either of acquittal or conviction has been passed, this court cannot proceed with deciding the case on merits and pass its own judgment. A perusal of the record reveals that in this case neither a retrial is warranted nor additional evidence is required to be taken. Thus, Section neither 386 (a) nor 392 has any application. All that is required is a fresh judgment by the trial Court on the basis of material available on record, indicating in unequivocal manner whether the accused has been convicted or acquitted. 8. Thus, in exercise of powers reserved to the High Court under section 482 of the Cr.P.C. the matter is remitted back to the trial Court for passing a fresh judgment on the basis of material available on record. 9. 8. Thus, in exercise of powers reserved to the High Court under section 482 of the Cr.P.C. the matter is remitted back to the trial Court for passing a fresh judgment on the basis of material available on record. 9. This appeal accordingly stands disposed of. 10. Let a copy of this judgment be sent to the learned Magistrate, wherever she is posted for avoidance of such judgments in future.