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2023 DIGILAW 1148 (RAJ)

Madhav Prasad Jethaliya v. State of Rajasthan

2023-05-19

FARJAND ALI

body2023
ORDER : Farjand Ali, J. The instant Criminal Leave to Appeal has been preferred against the judgment dated 30.08.2022 passed by the learned Special Judicial Magistrate, N.I.Act Cases No.4, Bhilwara in Criminal Regular Case No.2450/2018 whereby, the learned Judge has acquitted the accused-respondent and dismissed the complaint filed by the petitioner. 2. Bereft of elaborated details, succinctly stated the facts of the case are that a criminal prosecution for offence under section 138 of the Negotiable Instruments Act came to be launched at the behest of the petitioner against the accused respondent averring therein that a cheque No.006030 dated 20.09.2017 amounting to Rs.10 lacs was given by the accused-respondent to the petitioner-complainant against discharging legal liability which upon presentation in the Bank got dishonoured due to insufficient funds in his account and, therefore, a legal notice was sent to the accused-respondent to deposit the amount in question. Despite notice, accused failed to deposit the same within the stipulated period, thus, the petitioner was constrained to submit a criminal complaint before the trial Court. After taking cognizance of the offence, the accused was summoned and upon his presence, the substance of accusation was stated to him. After recording the evidence of the parties and upon examination of the accused under Section 313 of the Cr.P.C., due opportunity of hearing was given to the parties and thereafter, vide impugned judgment dated 30.08.2022, the learned trial Court acquitted the accused respondent from the charge under section 138 of the N.I. Act. Hence, the instant criminal leave to appeal. 3. Shri Ajay Vyas, learned counsel appearing for the leave-petitioner submitted that the judgment of acquittal suffers from gross illegality. The learned trial Judge has failed to appreciate the legal and factual aspects of the matter and thus, reached at an erroneous conclusion, therefore, the entire material is required to be re-appreciated by this Court and the petitioner may be permitted to prefer an appeal against the judgment of acquittal and leave application may be treated and registered as memo of appeal and the accused-respondent be convicted for the aforesaid charge and be punished adequately. 4. 4. Per contra, learned Public Prosecutor as well as learned counsel appearing for the respondent-accused vehemently and fervently opposed the submissions made by learned counsel for the petitioner and contended that the learned trial Judge has considered the evidence meticulously and after threadbare discussion of the same passed the judgment of acquittal in favour of the respondent, which does not suffer any infirmity, illegality or impropriety so as to warrant interference by this Court. 5. Heard learned counsel for the petitioner as well as learned Public Prosecutor and learned counsel for the respondent. Perused the impugned judgment as well as material available on record. 6. The presumption of innocence is a kind of reinstatement of the rule that is applied in criminal matters as per which, until guilt is proved, the accused shall be presumed to be innocent. This Rule has been recognized as one of the most basic requirements of a fair trial. The onus to prove the case beyond every shadow of reasonable doubt lies upon the prosecutor except where theory of reverse burden is applicable. Even in the cases where certain presumptions are available with the prosecutor, he/she/they cannot shun from his/her/their responsibility of proving the case of the prosecution and as such, initial burden always lies upon the prosecutor. The presumption of innocence which was already existing in favour of the accused got further fortified by the judgment of acquittal passed by a Court of competent jurisdiction and thus, unless it is shown that any gross illegality has been committed or it is suggested that the judgment of acquittal is a product of total non-consideration of the material available on record or the trial Judge has misdirected himself in appreciating the evidence; the Court of appeal should show reluctance and should be very slow in making interference in the judgment of acquittal. Yet, for the purpose of satisfaction, this Court has minutely gone through the judgment passed by the learned trial Court as well as the evidence adduced by the respective parties. The cheque Ex.P/1 got dishonoured by the Bank concerned and a memorandum of information was sent to the complainant which is tendered into evidence and marked as Ex.P/2 as per which the reason for dishonourment of cheque was "account-blocked". The cheque Ex.P/1 got dishonoured by the Bank concerned and a memorandum of information was sent to the complainant which is tendered into evidence and marked as Ex.P/2 as per which the reason for dishonourment of cheque was "account-blocked". The legal notice Ex.P/3 sent at the instance of the petitioner-complainant clearly recites that the cheque was dishonoured due to insufficiency of the funds/amount in the account of the accused. In Para 4 of the complaint moved by the complainant, it has specifically been mentioned that the cheque was dishonoured due to insufficiency of funds in the account of the accused. Thus, there is a significant defect in the case of the prosecution in which the very cause of action has wrongly been mentioned. Even in the affidavit of P.W. 1 in Para No.2, the cause of dishonorment of cheque has been shown to be insufficient funds. The cause of action shown by the complainant does not get corroboration from his own document, thus, there is a serious incongruity with regard to cause and causation. The learned trial Judge has aptly discussed the evidence available on record and reached at a legitimate conclusion which, in the considered view of this Court, is just and reasonable. No illegality, incorrectness or impropriety is found in the judgment dated 30.08.2022 passed by the learned Special Judicial Magistrate, N.I.Act Cases No.4, Bhilwara, thus, there is no merit in the instant Criminal Leave To Appeal filed by the leave-petitioner. 7. In view of the discussion made herein above, this Court is of the opinion that it is not a fit case for granting leave to appeal and the same deserves dismissal. Accordingly, dismissed. 8. Record of the case be sent back forthwith.