JUDGMENT : Anil Kumar Choudhary, J. I.A. No.11154 of 2024 1. Heard the parties 2. This interlocutory application has been filed with a prayer for grant of special leave to the appellant to prosecute and present this acquittal appeal. It is next submitted that the private respondents were convicted by the learned Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No. 572 of 2015 for having committed the offence punishable under Section 138 of N.I. Act but in Criminal Appeal No. 263 of 2018 the learned Sessions Judge, East Singhbhum at Jamshedpur reversed the judgment of conviction and acquitted the private respondents illegally without properly going through the materials in the record. It is then submitted that unless the special leave is granted to the appellant to present and prosecute this present appeal, the appellant will be highly prejudiced. 3. Considering the aforesaid facts, special leave as prayed for, is granted to the appellant to present and prosecute this acquittal appeal. 4. This interlocutory application is disposed of accordingly. Acq. App. (C) No.21 of 2024 1. This appeal will be heard. 2. Admit. 3. Lower Court Record is already in the record. 4. Mr. Rajesh Kumar, Advocate receives notice on behalf of the respondent no.2. 5. Heard the parties on the merit of this appeal. 6. This acquittal appeal has been filed under Section 378 (4) of the Code of Criminal Procedure against the judgment dated 03.06.2019 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur in Criminal Appeal No. 263 of 2018 whereby and where under, the learned Sessions Judge, East Singhbhum at Jamshedpur set aside the judgment of conviction and order of sentence dated 18.09.2018 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No. 572 of 2015 whereby and where under, the learned Judicial Magistrate 1st Class, Jamshedpur held that the appellants before the learned Sessions Judge are guilty of the offence punishable under Section 138 of N.I. Act and sentenced them to undergo simple imprisonment for a period of one year and also ordered to pay fine as compensation, to the tune of Rs.35,00,000/- to the complainant. 7. The undisputed fact remains that the appellant nos.1 and 2 of Criminal Appeal No. 263 of 2018 namely Satpal Sachdev and Tarun Sachdev were originally arrayed as respondent nos. 7. The undisputed fact remains that the appellant nos.1 and 2 of Criminal Appeal No. 263 of 2018 namely Satpal Sachdev and Tarun Sachdev were originally arrayed as respondent nos. 3 and 4 of this acquittal appeal but during the pendency of this acquittal appeal, consequent upon their death, their names were deleted and one Chaitali Sachdev who is the wife of Tarun Sachdev has been arrayed as respondent no. 3. 8. The undisputed fact remains that Chatali Sachdev was not a party to C/1 Case No. 572 of 2015 or Criminal Appeal No. 263 of 2018. 9. The brief fact of the case is that three accused persons of the said complaint case issued a cheque of Rs.30,00,000/- in the name of the appellant of this appeal, in discharge of the friendly loan amount of Rs.30,00,000/-. The appellant deposited cheque which has been marked Ext. 1 in its bank account for encashment but the said cheque was dishonoured on the ground that payment has been stopped by the drawer and the amount exceeds arrangement of the drawer with their bank. The cheque return memo has been exhibited as Ext.2, during the trial of the case. The appellant issued demand notice calling upon the payment of the said cheque amount of Rs. 30,00,000/-. The accused persons of the complaint case after receipt of the notice did not pay the amount. Hence, the appellant filed complaint case being C/1 Case No. 572 of 2015 in the court of learned Chief Judicial Magistrate, Jamshedpur. The learned Judicial Magistrate, Jamshedpur found prima facie case for the offence punishable under Section 138 of N.I. Act and the accused persons of the complaint case faced the trial. The undisputed fact remains that during the trial of the case only one witness namely Vijay Kumar Gangawani was examined by the complainant being the Karta of the complainant Vijay Kumar(HUF) as C.W.1 and his examination-in-chief was filed in shape of affidavit. After cross-examination, he has been discharged. The undisputed fact remains that no witness was examined on behalf of the accused person of the complaint case nor any document was brought on record by them so, there is absolutely no evidence put forth by the accused persons of the case, in their defence. 10. After cross-examination, he has been discharged. The undisputed fact remains that no witness was examined on behalf of the accused person of the complaint case nor any document was brought on record by them so, there is absolutely no evidence put forth by the accused persons of the case, in their defence. 10. Considering the materials available in the record, the learned trial court convicted and sentenced the accused persons of the case as already indicated above. 11. Being aggrieved by the judgment of conviction and order of sentence dated 18.09.2018, the accused persons of the case filed Criminal Appeal No. 263 of 2018. The learned Sessions Judge, East Singhbhum at Jamshedpur after hearing the arguments of both sides formulated the question:- “Whether the cheque was issued against any legally recoverable debt or other liability and whether on the materials available on record the presumption contained under Section 139 of N.I. Act stood rebutted on the principle of preponderance of probabilities or not? 12. The learned Sessions Judge considered that though it was the case of the complainant that Rs.30,00,000/- was given as loan which would be evident from the ledger account but the ledger statement has not been proved to show the existence of any debt or liability. The learned Sessions Judge also considered that tyres were given to the accused persons from the market and it should have been brought on record by way of evidence by some bills but no bill was brought on record. The learned Sessions Judge also considered some facts of some other case, in para-14 of the impugned judgement, by observing that one more appeal between the same parties was fixed for judgement on the same day, the impugned judgement was delivered, and in that case, the complainant-appellant herein failed to bring on record any document of lending money and straightway by making composite reading of two complaint cases. The learned Sessions Judge also considered that the said C.W.1 of the complaint case, stated that he is having a money lending business without valid licence and by thus, considering, the learned Sessions Judge, came to the conclusion that the complainant has failed to prove its case with regard to existence of legally enforceable debt or other liability and since the case was not proved and the presumption under Section 139 of N.I. Act stood rebutted; the learned Sessions Judge went on to hold that the conclusion of the guilt of the appellants is not in accordance with law and set aside the judgment of conviction and order of sentence. 13. It is submitted by the learned counsel for the appellant that the learned Sessions Judge, East Singhbhum at Jamshedpur committed a grave error on several counts. Firstly, the learned Sessions Judge, East Singhbhum at Jamshedpur failed to consider that it is not even the case of the accused persons of the case that complainant has no legally enforceable debt, in discharge of which the cheque was issued, as absolutely no question was put in the cross-examination of C.W.1, to this effect and in the absence of any question being put, such portion of the testimony of the witness has remained unimpeachable and has to be believed by the court. Further, the learned Sessions Judge failed to take into consideration that in the cross-examination, the accused person having given a suggestion to the C.W.1 that, the accused persons have paid back more than the money taken from the complainant by paying the to the wife and children of the C.W.1 in paragraph-21 of the cross-examination of the C.W.1; the same amounts to admission on the part of the accused person that the money from the complainant. Secondly, it is submitted that the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a grave illegality by taking into consideration the facts of other complaint case, in paragraph 14 of the impugned judgement by mentioning that in some other complaint case between the parties the complainant failed to bring on record in the document of ledger statement. Secondly, it is submitted that the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a grave illegality by taking into consideration the facts of other complaint case, in paragraph 14 of the impugned judgement by mentioning that in some other complaint case between the parties the complainant failed to bring on record in the document of ledger statement. It is then submitted that the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a grave illegality by using his personal knowledge if any, which was not borne out of the case record of this case and that too without giving any opportunity to the complainant-appellant herein to rebut such personal knowledge of the learned Sessions Judge, East Singhbhum at Jamshedpur; in gross violation of the cardinal principle of appreciation of evidence in a criminal trial. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Uttam Ram vs. Devinder Singh Hudan & Anr. reported in 2019 SCC OnLine SC 1361 , paragraph no. 32 of which reads as under:- “32. The learned counsel appearing for the respondent also referred to M.S. Narayana Menon [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] and K. Prakashan v. P.K. Surenderan [K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 : (2008) 1 SCC (Civ) 182 : (2008) 1 SCC (Cri) 200] that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The learned counsel also relies upon a judgment John K. Abraham v. Simon C. Abraham [John K. Abraham v. Simon C. Abraham, (2014) 2 SCC 236 : (2014) 1 SCC (Civ) 785 : (2014) 1 SCC (Cri) 791] that mere fact that the statutory notice was not replied cannot prejudice to the case of the respondent. We do not find any merit in the arguments raised by the learned counsel for the respondent. In fact, the findings recorded by the courts below are total misreading of the statutory provisions more so when the respondent has not led any evidence to rebut the presumption of consideration. Cross-examination on the prosecution witness is not sufficient to rebut the presumption of consideration. In fact, the findings recorded by the courts below are total misreading of the statutory provisions more so when the respondent has not led any evidence to rebut the presumption of consideration. Cross-examination on the prosecution witness is not sufficient to rebut the presumption of consideration. Mere discrepancies in the statement in respect of the cartons, trays or the packing material or the rate charged will not rebut the statutory presumption which is proved by CW 3 Prem Chand.”( Emphasis Supplied) It is submitted by the learned counsel for the appellant that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the accused person has not led any evidence to rebut the presumption of consideration mere cross-examination of the prosecution witness is not sufficient to rebut the presumption of consideration and in this case there is absolutely no cross-examination even of the C.W.1, the sole witness examined by the parties to the case, to the effect that there was no legally enforceable debt, rather it is the admitted case of the accused persons of the case that they issued the cheque, which carries it with the presumption that there was legally enforceable debt under Section 139 of N.I. Act. Hence, the learned Sessions Judge, East Singhbhum at Jamshedpur has committed perversity by reversing the judgment of the learned Judicial Magistrate on the flimsy grounds throwing all legal norms to the woods, leading across miscarriage of justice. 14. Learned counsel for the appellant next relied upon the judgment of Hon’ble Supreme Court of India in the case of T.P. Murugan (Dead) Through Legal Representatives vs. Bojan and allied cases reported in (2018) 8 SCC 469 , paragraph no. 23 of which reads as under:- “23. The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and pronote were signed by him, the presumption under Section 139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. The respondent having admitted that the cheques and pronote were signed by him, the presumption under Section 139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. (Emphasis Supplied) and submits that in this case also, like the case of T.P. Murugan (Dead) Through Legal Representatives vs. Bojan and allied cases (supra) the appellant has proved its case by overwhelming evidence to establish that the cheque was issued towards the discharge of an existing liability and legally enforceable debt and this portion of the testimony or the case of the complainant was not even disputed by the accused persons of the case. Hence, the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a grave illegality by failing to take note of the settled principle of law regarding presumption under Section 139 of N.I. Act. Hence, it is submitted that the impugned judgment dated 03.06.2019 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur in Criminal Appeal No. 263 of 2018 being not sustainable in law be set aside and the judgment of conviction and order of sentence dated 18.09.2018 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No. 572 of 2015 be restored. 15. Learned Addl. P.P. and the learned counsel for the private respondents on the other hand oppose the prayer to set aside the judgment and conviction. It is submitted by the learned counsel for the private respondents that the respondent no.3 being not an accused person of Complaint Case No. 572 of 2015 nor the appellant of Criminal Appeal No. 263 of 2018 nor in any way associated with the issuance of cheques or even the debt in question in respect of which the cheques were issued, in any manner, hence, even if the judgment of conviction passed by the learned Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No. 572 of 2015 is restored, the same is to be restored only against the respondent no.2 of this acquittal appeal, as the undisputed fact remains that the other two accused persons of the complaint case have died and their criminal liability cannot be saddled upon anyone else. It is further submitted by the learned counsel for the private respondents relying upon the judgment of Hon’ble Supreme Court of India in the case of Rajaram s/o Sriramulu Naidu (since deceased) Through Lrs. Vs. Maruthachalam (since Deceased) Through Lrs. reported in 2023 LiveLaw (SC) 46 that in that case the Hon’ble Supreme Court of India relied upon the its judgment in the case of Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 418 , paragraph nos. 25 to 25.5 of which reads as under:- “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. and submits that it is a settled principle of law that to rebut the presumption under Section 139 of N.I. Act, it is open to the accused person to rely on the materials put forth by the complainant in order to raise the probable defence and it is not necessary for the accused person to come in to the witness box in support of its defence as Section 139 of N.I. Act imposes an evidentiary burden and not a persuasive burden. Learned counsel for the private respondents also relied upon the judgment of Andhra Pradesh High Court in the case of M/s. Baba Finance Corporation vs. Mohd. Nayeem &Anr. reported in 1997 ALL MR (Cri) Journal 1 and the judgment of Bombay High Court in the case of Mrs. Monica Sunit Ujjain vs. Sanchu M. Menon & Ors. in Criminal Revision Application No. 394 of 2015 dated 02.08.2022 and submits that as in this case the complainant has admitted that he was having a money lending business that too without licence hence, the learned Sessions Judge, East Singhbhum at Jamshedpur has not committed any illegality in coming to the conclusion that the accused persons of the case have succeeded in discharging of the burden of the presumption that the cheques were issued in discharge of any legally liability. Hence, it is submitted that this appeal being without any merit be dismissed. 16. Having heard the submissions made at the Bar and after carefully going through the materials in the record, the sole question that crop up for consideration before this Court is :- “Whether the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a perversity by coming to the conclusion that the complainant-respondent has failed to prove its case with regard to existence of legally enforceable debt or other liability and the accused persons have rebutted the presumption under Section 139 of N.I. Act and thereby set aside the conviction of the accused persons of the case?” 17. At this stage, it is relevant to refer to the settled principle of law regarding cross-examination, that if a party wishes to raise any dispute as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility as has been held by the Hon’ble Supreme Court of India in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under :- “31. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under :- “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096 ) : (2005 AIR SCW 589).” (Emphasis supplied) 18. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096 ) : (2005 AIR SCW 589).” (Emphasis supplied) 18. It is also pertinent to mention here that there are instances galore where the Hon'ble Supreme Court of India has held that in the absence of cross- examination of a witness, the evidence of such witness remains unchallenged and ought to be believed. In the case of State of U.P v. Nahar Singh repoted in AIR 1998 SC 1328 the Hon’ble Supreme Court of India in paragraph no. 13 held as under : “13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned : (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. 14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus: “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.” This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing.” (Emphasis supplied) 19. As also in the case of Sunil Kumar and another v. State of Rajasthan ( AIR 2005 SC 1096 ) the Hon’ble Supreme Court observed in paragraph 13 of the judgment as under:- “13. … … … … … … … … … … … … … … … … … Additionally, no question was asked to the investigating officer as to the reason for the delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.” (Emphasis supplied) 20. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.” (Emphasis supplied) 20. Now coming to the facts of the case, the undisputed fact remains that it is not even the case of the accused persons that the cheque was issued by them not in discharge of any legally enforceable debt as there is absolutely no suggestion given by the accused persons in the cross- examination of C.W.1 that the cheque was issued not for any legally enforceable debt nor any question to this effect was ever put to C.W.1 in his cross-examination. 21. Under such circumstances, this Court has no hesitation in holding that the learned Sessions Judge, East Singhbhum at Jamshedpur has committed a perversity for inventing a defence which was not even a defence of the accused persons of the case. The second perversity committed by the learned Sessions Judge, East Singhbum at Jamshedpur is using his personal knowledge if any beyond the materials in the record that in some other case between the parties, the complainant failed to prove that the cheque in question and that case, was in discharge of the legal liability, by failing to produce the ledger statement, in paragraph-14 of this impugned judgement. Certainly, this act of the learned Sessions Judge has been done in utter violation of the cardinal principle of appreciation of evidence in a criminal trial, which ultimately had resulted in miscarriage of justice. 22. As the accused persons of the case admitted execution of the cheque, so the same attracts the presumption as provided for in Section 139 of N.I. Act, that the holder of the cheque received the cheque for discharge in whole or part of any debt or other liability. The undisputed fact remains that the accused persons did not put forth any evidence whatsoever nor there is any cross-examination of the sole witness examined in the case, to even remotely show that they took the plea that the cheque was issued not in discharge of any debt or other liability. 23. So far, as the discussion made by the learned Sessions Judge, regarding the cross-examination of the C.W.1, in which he stated about his being involved in the money lending business is concerned, the same is wholly misconceived by the learned Sessions Judge. 23. So far, as the discussion made by the learned Sessions Judge, regarding the cross-examination of the C.W.1, in which he stated about his being involved in the money lending business is concerned, the same is wholly misconceived by the learned Sessions Judge. As, questions were put to the C.W.1 as to whether he was involved in money lending business; the C.W.1 answered the same in affirmative, and justified running money lending business without license. But the learned Sessions committed a grave mistake by giving unnecessary emphasis upon such cross-examination because no question was to the C.W.1, as to whether the present cheque was issued by the accused persons of the case, as part of his money lending business. When no such question was asked to the C.W.1, the learned Sessions Judge ought not have observed in paragraph-13 of the impugned judgement that the present cheque was issued by the accused persons of the case for taking money from the complainant in capacity of the complainant being a moneylender. As such, observation by the learned Sessions Judge was not based on any material in the record and when the same was not even the specific defence of the accused persons of the case, in the trial court. 24. Under such circumstances, this Court has no hesitation in holding that the impugned judgment dated 03.06.2019 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur in Criminal Appeal No. 263 of 2018, by inventing a defence which the accused person did not take during the trial and by justifying the same illogically, is a perverse one, resulting in miscarriage of justice, hence is liable to be set aside. Though the respondent no.3- Chaitali Sachdev has been arrayed as respondent no.3 of this appeal but she being undisputedly not the accused person of the Complaint Case No. 572 of 2015 nor she was party to the Criminal Appeal No.263 of 2018 nor there is any allegation that she was in any way associated with the issue of cheque which was dishonoured, certainly, the appeal cannot be allowed against her and the acquittal appeal will be allowed against the respondent no.2 only. 25. 25. Accordingly, the judgment dated 03.06.2019 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur in Criminal Appeal No. 263 of 2018 is quashed and set aside and the judgment of conviction and order of sentence dated 18.09.2018 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in C/1 Case No. 572 of 2015 is restored only against the respondent no.2 of this appeal. 26. This acquittal appeal is allowed to the aforesaid extent only.