Ajit Singh Waraich vs Worldwide Corporation Ltd. and Others

Sabina, J.—Respondent had faced trial in a complaint filed by the applicant u/s 138 of the Negotiable Instruments Act, 1881 (in short ''Act''). Case of the complainant, as per the complaint, in brief, was that he had entered into an agreement with the accused on 14.06.2004 qua construction of flats. Cheque in the sum of Rs. 10,00,000/- was handed over by D.K. Talwar, President of City Star Co-operative Housing Building Society to the accused by way of security. The said cheque was presented for encashment by the accused without the consent of the complainant. Thereafter, accused took Rs. 7,00,000/- in cash and cheque in the sum of Rs. 3,00,000/- from D.K. Talwar against the said cheque. Thus, D.K. Talwar had cheated the complainant by misappropriating Rs. 3,00,000/- paid by the complainant. Thereafter, complainant moved a complaint before the police on 13.09.2004. Accused No. 4 Mukesh Nayyar being Director and Authorized Signatory of the company entered into a compromise with the complainant and issued a cheque dated 08.09.2004 in the sum of Rs. 3,00,000/- in favour of the complainant. When the said cheque was presented for encashment, it was dishonoured with the remarks "Account Frozen". Despite service of the legal notice, the cheque amount in question was not paid by the accused to the complainant. Hence, the complaint u/s 138 read with Section 142 of the Act was filed.

Trial Court vide judgment dated 12.08.2013 ordered the acquittal of the respondent. Hence the present application u/s 378(4) for leave to file an appeal by the complainant.

I have heard learned counsel for the applicant and have gone through the record available on the file carefully.

Complaint qua accused Kewal Krishan Nayyar and Mukesh Nayyar was got dismissed as withdrawn vide order dated 10.05.2013.

Trial Court, while acquitting respondent No. 2 qua the notice of accusations served on him held that the cheque in question was admittedly issued by accused Mukesh Nayyar being Authorized Signatory and Director of the company. However, the complaint in question was got dismissed as withdrawn qua the said accused. There was no mention in the complaint that respondent No. 2 was responsible for day to day affairs of the company. The cheque in question was admittedly not issued by respondent No. 2.

In these circumstances, the reasons given by the Trial Court while ordering the acquittal of respondent No. 2 are sound reasons. Learned counsel for the applicant has failed to point out any misreading of evidence by the trial court.

Their Lordships of the Supreme Court in Allarakha K. Mansuri Vs. State of Gujarat, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.

A Division Bench of this Court in State of Punjab Vs. Hansa Singh while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

To the same effect is the ratio of the judgments of the Supreme Court in State of Goa Vs. Sanjay Thakran and Another, and in Chandrappa and Others Vs. State of Karnataka,

Similarly, in Mrinal Das and Others Vs. The State of Tripura, , the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Hence, no ground for leave to file an appeal u/s 378(4) Cr.P.C. is made out. Dismissed.