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2023 DIGILAW 594 (ALL)

Narendra Singh v. Jas Karan Lal Verma

2023-02-28

SAROJ YADAV

body2023
JUDGMENT : SAROJ YADAV, J. 1. This criminal appeal has been filed by the appellant against the judgment and order dated 26.05.1999 passed by Judicial Magistrate Ist, Barabanki in Complaint Case No. 662 of 1999 (Narendra Singh vs. Jas Karan Lal Verma) under Section 138 of Negotiable Instruments Act 1881, Police Station Kotwali City, District Barabanki, whereby the accused/opposite party was acquitted. 2. The necessary facts for disposal of this appeal are as follows: A cheque was issued by the respondent in favour of the appellant and that was dishonoured. On 06.05.1998 the appellant sent a registered notice to the respondent within the prescribed time of 15 days. The notice so sent was received by the respondent on 14.05.1998 but the respondent did not pay the cheque amount to the appellant. Thereafter the appellant filed a criminal complaint against the respondent. In the complaint the appellant alleged that the respondent purchased Mentha Oil from the appellant and the payment was towards the Mentha Oil but the cheque was dishonoured. 3. The concerned Magistrate recorded the statement of the complainant under Section 200 of Cr.P.C. and summoned the respondent. Thereafter, the statement of the complainant was recorded under Section 244 of Cr.P.C. Thereafter, the concerned Magistrate framed the charge against the accused respondent under Section 138 of Negotiable Instruments Act, 1881 (in short “N.I. Act”). The accused respondent denied the crime and claimed to be tried. The complainant was cross-examined under Section 246 of Cr.P.C. He also produced one witness namely Duryodhan Prasad as PW2. After close of evidence of complainant/ appellant, the statement of accused/respondent was recorded under Section 313 Cr.P.C. wherein he denied any contract of sale and purchase of Mentha Oil and issuance of cheque. He also denied receipt of any notice through Registered Post. He stated that he issued a cheque of Rs.45,000/- in lieu of earlier contractual work. He further stated that some of cheques were stolen from his cheque-book about which he informed to the Bank and Bank cancelled the cheques so stolen and stopped the payment of the stolen cheques. The respondent examined DW1-Dinesh Chandra Sharma, Branch Manager of Union Bank of India to prove the fact that his cheques were stolen and he applied to the Bank to cancel the cheques and stop the payment. 4. After close of evidence, learned trial Court heard the arguments of both the parties. The respondent examined DW1-Dinesh Chandra Sharma, Branch Manager of Union Bank of India to prove the fact that his cheques were stolen and he applied to the Bank to cancel the cheques and stop the payment. 4. After close of evidence, learned trial Court heard the arguments of both the parties. On the basis of evidence available on record and the arguments advanced, the trial Court concluded that the complainant/appellant did not prove the fact that the cheque was issued by the respondent/accused under his signature. Learned trial Court gave reasons that once the signature on the cheque was denied by the person issuing i.e. respondent then it was the duty of the appellant to get proved the signatures of the respondent but he did not adduce any evidence to prove the fact that the signature was of the respondent. Learned trial Court further gave the reasons that DW1 produced by the respondent to prove the fact that cheques of the respondent were stolen and he moved an application to get the cheques so stolen cancelled and stop the payment. DW2-Branch Manager of the concerned Bank proved from his evidence that the respondent moved an application in his Bank stating that some cheques were stolen by somebody so he prayed for stopping the payment and stop payment was made on 28.09.1996. It is proved by the DW1-Branch Manager that the payment of cheque was stopped on the application of the respondent. Learned trial Court further gave the reasons for dismissing the complaint that the signature on the receipt of notice has also been denied by the respondent and the same has not been proved and there is an overwriting on the signatures allegedly made by the respondent on acknowledgement slip. Giving all these reasons learned trial Court came to the conclusion that the complainant/appellant could not prove the fact that the respondent issued the cheque in favour of the appellant/complainant and also could not prove that the notice sent by the complainant/appellant was received by the respondent/accused. Giving all these reasons inter alia the learned trial Court dismissed the complaint and acquitted the respondent/accused of the charge framed under Section 138 N.I. Act. Being aggrieved of this acquittal, this criminal appeal has been preferred. 5. Heard Sri R.N. Shukla, learned counsel for the appellant, Sri Sanjay Kumar, learned counsel for the complainant and perused the material available on record. 6. Being aggrieved of this acquittal, this criminal appeal has been preferred. 5. Heard Sri R.N. Shukla, learned counsel for the appellant, Sri Sanjay Kumar, learned counsel for the complainant and perused the material available on record. 6. Learned counsel for the complainant/appellant argued that learned trial Court without appreciating the merits of the case acquitted the respondent in the present case holding that payment was stopped by the respondent. Learned trial Court has committed manifest error of law disbelieving the evidence produced by the appellant and believing the evidence produced by the respondent. It is the case of the appellant that cheque was issued by the respondent in favour of the appellant. In such a situation there was a liability of the respondent to pay the amount to the appellant. The payment could not be made for the reason because there was insufficient fund in the account of the respondent. He further argued that once the cheque was issued, it was the duty of the person issuing the cheque to maintain the balance in the account to honour the cheque. The payment can not be stopped after issuing the cheque. Learned counsel for the appellant relied on the following case law: K.S. Ranganatha vs. Vithal Shetty, 2022 (119) ACC 706 Supreme Court 7. Contrary to it, learned counsel for the respondent argued that the respondent did not issue the cheque in question. In fact some of his cheques were stolen in the year 1996 about which he informed in writing to his Bank and got the cheques cancelled and stop payment. This fact has been proved by the DW1-Branch Manager of the concerned Bank. He further argued that previously appellant and respondent worked together in collaboration and finally they separated. He issued a cheque of Rs.45,000/- in that connection to the appellant and that was encashed by the appellant. He further argued that the factum of doing business in collaboration has been admitted by the appellant in his cross-examination. He further argued that the appellant has given contradictory statements in regard to signature of the respondent on the cheque in question. At one place he has stated that the cheque was filled by the ink in writing and at another place he has stated that it was type written. He further argued that the appellant has given contradictory statements in regard to signature of the respondent on the cheque in question. At one place he has stated that the cheque was filled by the ink in writing and at another place he has stated that it was type written. The fact is that the cheque in question was never issued by the respondent in favour of the appellant rather some of his cheques including the cheque in question were stolen, about which, the concerned Bank was informed. Hence the appeal deserves to be dismissed. 8. Considered the rival submissions, perused the material available on record and gone through the case law cited by the learned counsel for the appellant. 9. The case of the appellant is that the respondent issued a cheque of Rs.1,88,000/- bearing Cheque No. 6215512 in his favour towards the payment of Mentha Oil. On the other hand, the respondent denied issuance of any such cheque rather stated that some of his cheques were stolen including the cheque in question, about which he informed his Bank in writing and those cheques were cancelled. To prove this fact he has examined DW1-Dinesh Chandra Sharma-Branch Manager, Union Bank of India, who has stated that payment of cheque in question was stopped on the application dated 28.09.1996 moved by Jas Karan Lal Verma. He has filed in this regard the document Exhibit Kha-1. The respondent has denied his signatures on the disputed cheque, on the receipt of notice and acknowledgment slip but the appellant did not produce any evidence to prove the fact that signature on these documents were of respondent Jas Karan Lal Verma. The appellant in his cross-examination has explained the fact that he worked in collaboration with the respondent but he separated his work in the year 1996 from the respondent. These all facts show that the appellant did not discharge his burden of proving his case beyond reasonable doubt. Learned trial Court has given cogent, convincing and valid reasons for dismissing the complaint and acquitting the accused respondent. The case law cited by the learned counsel for the appellant in the case of K.S. Ranganatha Versus Vithal Shetty (Supra) is of no help to the appellant because the facts and circumstances of the case are different. Learned trial Court has given cogent, convincing and valid reasons for dismissing the complaint and acquitting the accused respondent. The case law cited by the learned counsel for the appellant in the case of K.S. Ranganatha Versus Vithal Shetty (Supra) is of no help to the appellant because the facts and circumstances of the case are different. In the cited case law the person issuing the cheque has admitted that he signed the cheque but his signature was obtained by force. In the present matter, the respondent has denied issuance of cheque and signatures over the disputed cheque. 10. For the above-mentioned reasons, this appeal deserves dismissal and is accordingly dismissed.