Arvind Kumar vs Nasir Hussain

B.D. Rathi, J.—Heard finally with the consent of the counsel for the petitioner.

On behalf of the petitioner/complainant, this petition has been preferred u/s 378(4) of the Code of Criminal Procedure for grant of leave to file an appeal against the acquittal of the respondent/accused of the offence punishable section 138 of the Negotiable Instruments Act (for short NI Act), vide impugned judgment dated 5/5/08 passed in Criminal Case No.7967/06 by the ACJM, Gwalior.

As per the case of the prosecution, the vehicle belonging to the complainant/petitioner Arvind was purchased by the brother of the accused/respondent on 29/1/04 and at the time of purchasing the said vehicle some agreement was entered into between the parties in respect of payment of the vehicle to the petitioner by way of installments. It is alleged that in pursuance of such agreement, Cheque No.000687 dated 27/7/05 for a sum of Rs. 50,000/- was issued against the payment to the petitioner by the accused which on submission to the bank was dishonoured due to in-sufficient amount in the account of the holder. Hence, the complaint was lodged and the cognizance was taken by the court against the accused-respondent. After appreciation of the evidence, the learned trial court having found no substance acquitted the accused of the offence u/s 138 of the NI Act. Hence, this petition before this court.

Having regard to the arguments canvassed, the entire case has been perused.

On perusal of the impugned judgment of acquittal, the salient features which are basing for recording acquittal of the accused are that the cheque in question was not given by the accused/respondent to the complainant as admitted by him in his cross-examination. Meaning by cheque was not given by accused against discharge of his debts whereas the provisions specifically lays down that there should be the dishonour of the cheque which has been issued by the drawer for the discharge, in whole or in part, of any debt or other liability and if the drawer of such cheque fails to make the payment of the said amount of money to payee or as the case may be to the holder in due course of time, he shall be liable to be prosecuted u/s 138 of the NI Act. It is further held by the court that the complainant himself in his evidence admitted the fact that he did not seek prior consent before presenting the cheque to the bank as per the agreement arrived at between the parties.

Again, it is clear that cheque was not in existence for encashment up to the date of obtaining consent to produce the cheque in bank for encashment. Apart that it was also admitted by the complainant that at the time of agreement of purchase the accused was not present. Therefore taking all these aspects of the matter, the court came to the conclusion that the complainant utterly failed to prove the necessary ingredients as required in section 138 of the NI Act to establish the charge against the accused.

After perusing the impugned judgment, this court also finds that no error has been committed by the trial Magistrate, which may lead to draw adverse inference against the findings so recorded. The judgment of acquittal is well merited.

Consequently, for want of substance in the petition same is hereby dismissed.