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2017 DIGILAW 1279 (RAJ)

Shyam Lal v. Mahaveer Kumar

2017-05-18

VIJAY BISHNOI

body2017
ORDER : Vijay Bishnoi, J. 1. This criminal leave to appeal has been filed by the appellant seeking leave to file appeal against the judgment dated 04.05.2013 passed by the Additional Chief Judicial Magistrate, Mavli, District Udaipur (hereinafter referred to as the ‘trial court’) in Regular Criminal Case No. 311/2011, whereby the trial court has acquitted the accused respondent for the offence punishable under Section 138 of the Negotiable Instrument Act. 2. Brief facts of the case are that appellant filed a complaint under Section 138 of the Negotiable Instrument Act before the trial court against the accused respondent Mahaveer Kumar with the allegation that on 30.06.2007, he has advanced a loan of Rs. 2,00,000/- to the accused respondent and he has given him a cheque No. 205952 dated 24.01.2008 for repayment of the said loan. It is alleged that the said cheque was presented in the concerned Bank on 10.06.2008 for realisation, however, the same was returned with remark "account closed." It is stated that a registered notice was sent to the accused respondent which was served upon him but despite that the loan amount was not paid to the appellant. 3. The trial court took cognizance against the accused respondent for the offence punishable under Section 138 of the Negotiable Instrument Act and framed charge against him for the aforesaid offence. The appellant got himself examined as PW-1 and got exhibited certain documents. The statement of the accused respondent were recorded under Section 313 Cr.P.C. wherein he has stated that he never received any loan from the appellant and cheque in question was given to him in security for not filing first information report in the police in some Post Office Scam, where wife of the accused respondent was the agent. The accused respondent has also stated that after handing him over the cheque as security, the appellant filed FIR after three days and, therefore, he got the account closed. In defence, the statements of wife of the accused respondent were recorded as (DW-1) and the accused respondent has also appeared as (DW-2) and ten documents were produced in defence. 4. Learned trial court after pondering over the evidence produced by the parties has held that the appellant has failed to prove beyond reasonable doubt that the cheque given to him by the accused respondent was against a legally enforceable debt. 4. Learned trial court after pondering over the evidence produced by the parties has held that the appellant has failed to prove beyond reasonable doubt that the cheque given to him by the accused respondent was against a legally enforceable debt. The trial court has observed that from the defence evidence, it is clear that the cheque in question was given to the appellant by the respondent as security for not filing FIR in relation to a Post Office Scam, where the wife of the accused respondent was agent. The trial court has also taken into consideration the fact that three complaints were filed by the appellant against the accused respondent for three different cheques and the total amount of the said cheques is Rs. 4,84,000/- and the amount involved in the Post Office Scam is also the same. The trial court has also taken into consideration the fact that the amount of Rs. 4,84,000/- has already been recovered by the appellant from the respondent in civil proceedings. 5. After taking into consideration the above facts and circumstances of the case, the trial court has acquitted the accused respondent for the offence punishable under Section 138 of the Negotiable Instrument Act. 6. After hearing the learned counsel for the appellant and after going through the facts and circumstances of the case, I do not find any illegality in the impugned judgment passed by the trial court. Hence, no case for grant of leave to appeal is made out. 7. Accordingly, this leave to appeal is dismissed.