Anil Kumar vs Yoginder Singh @ Joginder Singh

Applicant-Anil Kumar has filed this application under Section

378(4) Cr.P.C. seeking permission for leave to appeal against respondent

Yoginder Singh @ Joginder Singh, challenging the impugned judgment

dated 01.02.2016 passed by learned Judicial Magistrate Ist Class, Yamuna

Nagar at Jagadhri, vide which the accused-respondent was acquitted.

It is mainly stated in the application that accompanying appeal

is being filed which is likely to succeed on the grounds taken therein. It is

further stated that the impugned judgment dated 01.02.2016 passed by

learned JMIC, Yamuna Nagar at Jagadhri is against the facts and

circumstances of the case and the respondent has been acquitted without

appreciating the evidence available on record. It is, therefore, prayed that

leave to appeal be granted.

As per the record, the complainant Anil Kumar filed a

complaint against accused Yoginder Singh alias Joginder Singh under

Section 138 of the Negotiable Instruments Act. As per the complainant''s

case, in discharge of his existing liability towards the complainant, the

accused had issued a cheque bearing No.140784 dated 25.12.2012 in the

sum of `7 lakhs, which on presentation for encashment, was returned back

with the remarks ''Account Closed''. Legal notice was served. When the

amount was not paid, then the complaint was filed within time.

Learned JMIC, Yamuna Nagar at Jagadhri after appreciating

the evidence, acquitted the accused-respondent.

Aggrieved from the above-said judgment, present appeal along

with application for grant of leave to appeal has been filed.

After hearing learned counsel for the applicant and after going

through the record, especially the judgment passed by learned JMIC,

Yamuna Nagar at Jagadhri, I find that the findings have been given by

learned Magistrate while appreciating the evidence in right perspective. In

no way, the findings can be held as perverse or against the evidence.

Nothing has been pointed out as to which material evidence has been

misread and which material evidence has not been considered by the Court

below. Nothing has been pointed out as to how the findings are illegal or

against the law.

The perusal of the record shows that in the complaint, no date,

month and year has been mentioned as to when the liability came into

existence. There is no particular of existing liability and how it arose.

Nothing has been mentioned that in whose presence the amount was given

and at which place. No date of demand of loan or return of loan, has been

mentioned. There is no document on the record to prove the loan

transaction.

In cross-examination, the complainant stated that he had

advanced the friendly loan to the accused but in further cross-examination,

he stated that the liability arose on account of selling timbers standing in his

fields to the accused. No document of any type regarding khasra girdawari

or any other document for selling the timbers was produced on the record.

It has also come into the evidence that the complainant did not had any prior

relationship with the accused. The complainant has stated that the accused

met him by chance since the accused was a commission agent in the timber

market. It looks improbable that a person will give the loan or sell the

timber of such a huge amount without taking any document and will not

maintain any record.

Neither any particulars have been mentioned nor any document

is there to show the loan transaction. No date, month and year has been

mentioned by the complainant as to when he gave the loan. This evidence

rebuts the presumption under Section 139 of the Negotiable Instruments

Act.

Furthermore, the defence of the accused is that he has dealings

with Zamindara Timbers and has given blank signed cheques to them. The

present complainant connived with Zamindara Timbers. The accused has

also produced the copy of the judgment Ex.DA passed in complaint filed by

Kuldeep Singh regarding another cheque bearing No.140783 dated

20.09.2010, in which case, the accused had taken the same defence. The

cheque in the present case is bearing No.140784 but the date is filled up as

25.12.2012, though this cheque is next in the series of the earlier cheque

bearing No.140783 which was given on 20.09.2010.

In view of the above discussion, I find that the impugned

judgment dated 01.02.2016 passed by learned JMIC, Yamuna Nagar at

Jagadhri, is correct, as per law and evidence and does not require any

interference from this Court. No ground is made out for grant of leave to

appeal and therefore, the present application stands dismissed.