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2018 DIGILAW 539 (JHR)

Saraswati Devi v. State Of Jharkhand

2018-03-07

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. Heard learned counsel for the complainant appellant and learned counsel for the State. 2. The complainant appellant is aggrieved by the impugned Judgment of acquittal dated 5 th December 2016, passed by the learned Addl. Sessions Judge-I, Ramgarh, in Criminal Appeal No. 16 of 2015, whereby the appeal filed by respondent No.2, challenging her conviction and sentence in the Judgment and Order dated 20.1.2015, passed by the learned Judicial Magistrate, 1 st Class, Hazaribag, in Complaint Case No. 1145 of 2013 / T.R. No. 472 of 2015, finding her guilty, and convicting and sentencing her for the offence under Section 138 of the N.I. Act, has been set aside by the Appellate Court below, allowing the appeal and acquitting the respondent No.2 of the charge. 3. The impugned Judgment shows that according to the complainant appellant''s case, both the parties were in good relationship and the private respondent had taken a friendly loan from the complainant appellant to the tune of Rs. 2,00,000/- on 9.3.2013 for the purpose of family function, which was managed and given to the respondent No.2 by the complainant appellant. The respondent No.2 promised to return the amount by 10.4.2013 and she issued a Cheque No. 969797 dated 10.4.2013, for the amount of Rs. 2,00,000/- in favour of the complainant appellant. The said cheque was presented by the complainant in the Bank on 18.5.2013, which was dishonored on account of "insufficient fund" and information was given to the complainant. The complaint sent a legal notice to the accused respondent on 23.5.2013 through registered post, which was received by the respondent No.2 on 27.5.2013, and after the lapse of statutory period, when no payment was made, the complaint was filed by the complainant. 4. The impugned Judgment passed by the Appellate Court below further shows that the complainant had examined only herself in support of her case and there was no other witness to show that Rs. 2,00,000/- was given to the respondent No.2, except the ipse dixit of the complainant herself. Even the husband of the complaint did not come forward to depose the same, who was the person, who was said to have withdrawn the money from the Bank and given it to his wife, which was claimed to have been delivered at the house of the respondent No.2. There was no Bank statement showing the withdrawal of Rs. 2,00,000/- by her husband. There was no Bank statement showing the withdrawal of Rs. 2,00,000/- by her husband. This apart, the impugned Judgment further shows that the cheque was though signed by the accused respondent No.2, but it was found to be filled up in different handwritings and different inks. Exhibit-A and Exhibit-A/1 were proved before the learned Trial Court below to show that information was given to the police about the missing of the cheque along with one mobile on 24.2.2013, stating that they had been misplaced on 23.4.2014. Exhibit-B proved in the Court below, showed that the respondent had given the instructions to the Bank to stop the payment of the missing cheque. Vide Exhibit-2 proved in the Court, it was found that the Bank had informed that insufficient fund was inadvertently quoted for the reason of bouncing of the cheque, rather, the reason for nonpayment of the cheque was the ''stop payment instruction''. On the basis of these facts, the Court below found that the cheque was presented in the Bank much after the information was given to the Police Station about the missing of the cheque, and the instruction for non-payment was given to the Bank. Taking these facts into consideration, the learned Appellate Court below has acquitted the respondent No.2. 5. Aggrieved by the aforesaid Judgment of acquittal, the complainant appellant has filed the present acquittal appeal. I.A. No. 660 of 2017 has also been filed, seeking leave to appeal against the impugned Judgment of acquittal. 6. Learned counsel for the appellant has submitted that the impugned Judgment of acquittal passed by the Appellate Court below is absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the cheque was duly signed by the respondent No. 2, which was presented in the Court within time, when the same was dishonored, legal notice was given to the respondent No.2 within time and after waiting for the statutory period, the complaint was also filed within time. In that view of the matter, all the ingredients of Section 138 of the N.I. Act had been satisfied and there was no occasion for acquittal of the accused respondent. 7. Learned counsel for the State has opposed the prayer. 8. In that view of the matter, all the ingredients of Section 138 of the N.I. Act had been satisfied and there was no occasion for acquittal of the accused respondent. 7. Learned counsel for the State has opposed the prayer. 8. Having heard learned counsels for both the sides and upon going through the record, we find that sufficient reason has been cited by the Appellate Court below for acquitting the respondent No.2 of the charge. Though, it was the case of the complaint appellant that the money was withdrawn by her husband from the Bank and it was handed over to the accused, but even the husband of the complainant did not come to the witness box to support this fact and no evidence was adduced in the Trial Court below to show that the amount of Rs. 2,00,000/- was withdrawn from the Bank account of the husband of the complainant. This apart, the exhibits proved by the defence showed that the signed cheque and a mobile were missing on 23.4.2013, for which, information was given to the police on 24.4.2013, and instruction for stopping the payment was also given to the Bank. The impugned Judgment shows that the cheque was produced in the Bank, much after the instructions given to the Bank to stop the payment of the missing cheque. 9. In the facts of this case, we find that there is no illegality in the impugned Judgment of acquittal passed by the learned Appellate Court below, worth interference by this Court. Since we do not find any illegality in the impugned Judgment of acquittal, we do not find any valid reason for granting leave to appeal against the judgment of acquittal. 10. Accordingly, I.A. No. 660 of 2017, seeking leave to appeal against the impugned Judgment of acquittal stands dismissed. 11. Consequently, this acquittal appeal also stands dismissed, being bereft of any merit.