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2018 DIGILAW 253 (ORI)

Khusiram Sharma v. Pradip Chandra Deo

2018-03-15

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The appellant Khusiram Sharma was the complainant in I.C.C. Case No.64 of 1984 and the respondent Pradip Chandra Deo was the accused in the said case. The respondent faced trial in the Court of learned J.M.F.C., Cuttack in I.C.C. Case No.64 of 1984 for offence punishable under section 420 of the Indian Penal Code and he was acquitted of the charge vide impugned judgment and order dated 03.09.1991. 2. It is the case of the complainant that he was the proprietor of Nilachala Diary having its office at Bakharabad and he came in contact with the accused when the accused came to Cuttack and contacted him to purchase Jersy cows. The friendship developed between the two and in the year 1981, the accused approached the complainant during summer days to spare some amount for purchase of best Jersy cows. It is the further case of the complainant that due to the inducement of the accused that he would purchase cows from Cuttack and sale it at higher rate at Rourkela and return money to the complainant, the complainant paid Rs.23,500/- to the accused. After some days, when the complainant approached the accused to pay back the money, the accused issued a cheque of Rs.7,000/- on 14.10.1981 to the complainant putting the date as 19.10.1981 which was presented by the complainant in his account at United Bank of India but since insufficient money was available in the account of the accused, it was referred to the drawer. After dishonour of the cheque, the complainant met the accused and told him about the dishonour of the cheque but the accused made evasive statements for which the complainant wrote letters to the accused and sent telegrams. Since the accused did not pay the amount taken from the complainant, the complaint petition was filed. After filing of the complaint petition, the complainant was examined. The learned Magistrate took cognizance of the offence under section 420 of the Indian Penal Code and after appearance of the accused in the case, charge was framed under section 420 of the Indian Penal Code. 3. During course of trial, the complainant examined three witnesses including himself as P.W.1. After filing of the complaint petition, the complainant was examined. The learned Magistrate took cognizance of the offence under section 420 of the Indian Penal Code and after appearance of the accused in the case, charge was framed under section 420 of the Indian Penal Code. 3. During course of trial, the complainant examined three witnesses including himself as P.W.1. P.W.2 Raghunath Panda stated about the loan taken by the accused from the complainant and P.W.3 Kabi Prasad Mishra was the Assistant Manager of the Indian Overseas Bank who proved Ext.2, the statement of the account of the accused and he stated that the accused had only Rs.96/- in his account from 19.10.1981 to 03.11.1981. The cheque in question was exhibited as Ext.1 on behalf of the complainant. No witness was examined on behalf of the defence. 4. The learned trial Court after analysing the evidence on record has been pleased to hold that none of the witnesses alleged that the accused dishonestly induced the complainant for paying him Rs.23,500/- and knowing it pretty well that the cheque issued by him would be dishonoured, issued such a cheque and as such the requisite ingredients of the offence under section 420 of the Indian Penal Code is silent. It was further held by the learned trial Court that the complainant did not choose to advance such a huge amount without even any scrap of paper and although the complainant deposed that he sent telegram and letters, he has not proved any such letter or telegram. The learned trial Court also found that the version of the accused that he gave the cheque by way of advance for purchase of cows and subsequently changed his mind appeared to be reasonable and probable and accordingly, the learned trial Court gave benefit of doubt to the accused. None appears on behalf of the appellant or the respondent. The learned counsel for the State placed the impugned judgment and the evidence of witnesses. 5. After going through the impugned judgment and the evidence adduced by the complainant, it cannot be said that there is any illegality or infirmity in the impugned judgment. The learned trial Court assessed the evidence on record minutely and came to a finding that the ingredients of the offence under section 420 of the Indian Penal Code are not attracted. After going through the impugned judgment and the evidence adduced by the complainant, it cannot be said that there is any illegality or infirmity in the impugned judgment. The learned trial Court assessed the evidence on record minutely and came to a finding that the ingredients of the offence under section 420 of the Indian Penal Code are not attracted. It is the settled principle of law that in case of appeal against the order of acquittal, if two views are reasonably possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court. The appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the materials on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused in not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible on the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. (Ref:- Babu Vs. State of Uttar Pradesh, AIR 1983 SC 308 ). In view of the foregoing discussions, I am not inclined to interfere with the impugned judgment and order passed by the learned trial Court in acquitting the respondent of the charge under section 420 of the Indian Penal Code. Accordingly, the Criminal Appeal stands dismissed.