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2017 DIGILAW 1233 (RAJ)

Harish Chandra Sharma S/o Narayan Lal Sharma v. Sudha Sharma W/o Trilok Chandra Sharma

2017-05-15

VIJAY BISHNOI

body2017
JUDGMENT/ORDER : Mr. Vijay Bishnoi, J. 1. This criminal leave to appeal has been filed by the appellant seeking leave to file appeal against the judgment dated 19.11.2016 passed by the Special Judicial Magistrate (NI Act Cases), Chittorgarh (hereinafter referred to as 'the trial court') in Criminal Regular Case No. 14998/2015, whereby the trial court has acquitted the accused-respondent for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the NI Act.'). 2. Brief facts of the case are that the petitioner filed a complaint in the trial court alleging that the accused-respondent borrowed Rs. 1,00,000/- from him for some personal need and gave him a cheque for repayment of the said amount. It was alleged in the complaint that when the petitioner presented the said cheque before the concerned bank, the same could not be realised as the payment was stopped by the respondent. It was further alleged that the petitioner thereafter sent a notice to the accused-respondent, however, despite receipt of the said notice, the amount of loan was not paid by the accused-respondent. 3. In the court's statement, the petitioner has stated that he gave loan of Rs. 1,00,000/- to the accused respondent on 10.12.2012 and he has further stated that the accused respondent borrowed the said amount for the purpose of depositing fees of her son in engineering college. 4. The respondent produced the certified copy of the attendance register of the school Exhibit-D/1, where she was working as Teacher, to prove that on 10.12.2012 she was in school at Gangrar and, therefore, it is a false statement that on 10.12.2012 she approached the petitioner for borrowing Rs. 1,00,000/-. The respondent has also claimed that her husband is missing from last so many years, therefore, it is also false to say that she approached the petitioner along with her husband for the purpose of borrowing money. 5. The trial court has taken into consideration the material available on record and observed that in the complaint, the petitioner has not stated that for what purpose the respondent borrowed the amount of Rs. 1,00,000/- from him, but in his statement he has stated that the respondent borrowed the said money for the purpose of depositing fees of her son in the engineering college. 1,00,000/- from him, but in his statement he has stated that the respondent borrowed the said money for the purpose of depositing fees of her son in the engineering college. It is also observed by the trial court that though, in the complaint and in the statement, the petitioner has alleged that the accused respondent approached him for borrowing amount of Rs. 1,00,000/- along with her husband but at the same time he has admitted that the husband of the accused respondent is missing from last so many years. The trial court has also taken into consideration that the petitioner has failed to rebut the defence evidence to the effect that on 10.12.2012, the accused respondent was in the school at Gangrar from 10:30 AM to 04:30 PM and, therefore, it is not believable that she approached the petitioner for borrowing amount of Rs. 1,00,000/- on 10.12.2012 at around 12:00 PM. 6. After carefully scrutinizing the record of the case and after going through the judgment impugned, this Court is of the opinion that the petitioner has failed to prove before the trial court that he has given loan of Rs. 1,00,000/- to the respondent on 10.12.2012 and, therefore, the trial court has not committed any illegality in acquitting the accused respondent vide impugned judgment. 7. Hence, no case for grant of leave to file appeal against the impugned judgment is made out. Accordingly, this criminal leave to appeal is dismissed. Application For Leave To Application Dismissed.