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2018 DIGILAW 877 (JHR)

Ganga Bhandari v. State of Jharkhand

2018-04-18

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the petitioner and opposite party No.2. 2. Petitioner seeks special leave to appeal against the order of acquittal dated 30th June. 2017 passed by learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 788 of 2013 (T.R. No.632 of 20 17), whereunder the sole accused/opposite party No. 2 has been acquitted of the charges under Section 417 of Indian Penal Code. 3. Complainant alleged that accused being an unemployed person had taken a friendly loan of Rs. 1,70,000/- through his Account and Account of his wife, Punam Bhandari. He had promised to repay the loan within six months. After six months he issued a Cheque which got dishonoured. When complainant informed the accused, he assured to repay the entire amount in cash after taking the dishonoured Cheque. When the complainant went to his house on 20th March, 2013, the accused took the Cheque and torn it into pieces and refused to return the friendly loan. Subsequently, the case was filed for the aforesaid offence. 4. After solemn affirmation of the complainant and inquiry through the complainant's witnesses, accused was summoned. On his appearance, accusation was explained to him, to which he pleaded not guilty and claimed to be tried. Trial commenced. 5. Complainant examined two witnesses and exhibited these documents as under : A. Exhibit 1, 1/1, 1/2, 1/3 : Signature on the complaint petition. B. Exhibit 2 (With Objection): Cheque Deposit slip which is filled by the complainant in his own handwriting. C. Exhibit 3 (With Objection) : Return memo of cheque 302235 of SBI. Defence did not adduce any oral and documentary evidence. 6. After completion of the complainant's witnesses, statements were also recorded under Section 313, Cr PC in which he accepted that he took a friendly loan and had issued a Cheque in lieu of it but he had returned the amount and it is the complainant who tore the cheque. 7. Learned trial Court analyzed the evidence brought on record and came to the conclusion that the complainant had not been able to prove dishonest intention of the accused at the start of transaction and as such no offence of cheating is made out. 8. 7. Learned trial Court analyzed the evidence brought on record and came to the conclusion that the complainant had not been able to prove dishonest intention of the accused at the start of transaction and as such no offence of cheating is made out. 8. Learned Court also observed that Section 106 of Indian Evidence Act had no role to playas the accused had accepted that he had taken a loan from the complainant and issued a cheque in lieu of payment made which got dishonoured. There was no such fact especially within the knowledge of accused which he had to adduce in discharge of onus. 9. Learned counsel for the petitioner has questioned the findings of learned Court. He has referred to the provisions of Section 415 of the Indian Penal Code and illustration (f) thereunder. He submits that ingredient of offence has been conclusively established as the accused had intentionally induced the complainant to advance loan though there was no intention on his part to 'repay the amount. The accused has accepted the factum of issuance of cheque and that it got dishonoured is also established from the evidence on record. However, the accused refused to make the payment and tore the cheque in question. The ingredient of offence under Section 415 of Indian Penal Code having been established, learned trial Court committed an error in acquitting the opposite party No. 2 of the charges under Section 417 of the Indian Penal Code. He submits that there are significant differences in the ingredient of offence under Section 420, IPC where the punishment prescribed is also much higher. Therefore, special leave to appeal be granted to assail the impugned order before learned appellate Court. 10. Learned counsel for the opposite party No. 2 has opposed the aforesaid submission. He has referred to the averments made in the complaint and the statements of the complainant-C.W.-I and his wife C.W.-2 on oath. He submits that there are significant contradictions in the allegations made as on the one hand, complainant alleged to have given a friendly loan of Rs. 1.70 lakh to the accused but on the other hand, he has deposed about making payment through two cheques of Rs. 1.5 Lakh and Rs.50,000/- respectively through his Account and his wife's Account. He submits that there are significant contradictions in the allegations made as on the one hand, complainant alleged to have given a friendly loan of Rs. 1.70 lakh to the accused but on the other hand, he has deposed about making payment through two cheques of Rs. 1.5 Lakh and Rs.50,000/- respectively through his Account and his wife's Account. There is also significant contradiction in the place of occurrence as on the one hand, complainant in his complaint petition which he even got exhibited had stated that the accused tore the cheque at his own house at J.C. Mallick Road but during evidence he had stated that the cheque had been tom at his own residence. C.W.2-wife of the complainant stated that she knows the accused for about 6-7 years but she had stated that accused is of 40-45 years of age while in reality accused is merely of 30 years. A part from that it had also been stated by her that she had seen the entire incident, but CW 1-complainant stated that when the cheque was tom no one was present at the spot except complainant and accused. He submits that ingredients of the offence have to be established through strict proof. He has expressed doubts about the return memo adduced by the complainant which is dated 11th December, 2013 after such a gap of the alleged dishonour of cheque. The whole story is therefore doubtful and could not lead to the conviction of the accused. 11. We have considered the submission of learned counsel for the parties and gone through the impugned judgment and the material discussion on the evidence of the parties as made by learned trial Court. The evidence on record including the statement of the accused-opposite party No. 2 under Section 313. Cr PC goes to show that a friendly loan was advanced to the accused in lieu of which he had issued a cheque. The return memo adduced by the complainant shows that the cheque had been dishonoured. The accused had stated in his statement under Section 313. Cr PC that he had repaid the amount but there was no such document adduced on his behalf to show the payment. The return memo adduced by the complainant shows that the cheque had been dishonoured. The accused had stated in his statement under Section 313. Cr PC that he had repaid the amount but there was no such document adduced on his behalf to show the payment. Though learned counsel for the accused had made mention of certain inconsistencies or contradictions in the statement of the complainant's witnesses, but we do not wish to make comments on the merits of the case of the parties in a proceeding seeking special leave to appeal lest it may prejudice the case of the parties before the appellate Court. However, on consideration of the materials on record, we are satisfied that the petitioner has made out a case for grant of special leave to appeal before the appellate Court. Accordingly, the instant, petition is allowed. Petition allowed.