Ashok Kumar vs State of Jharkhand

Heard learned counsel for the petitioner and learned A.P.P. for the State.Â

Petitioner has prayed for grant of special leave to appeal in terms Section 378(4) of the Criminal Procedure Code 1973 against the judgment of

acquittal dated 13.09.2017 passed by learned Judicial Commissioner, Ranchi in Criminal Appeal No. 101 of 2017 where under the Appellate Court has

set aside the conviction and order of sentence passed in Complaint Case No. 2362 of 2013(T.R. No. 447 of 2017) dated 05.06.2017 by learned

Judicial Magistrate 1st Class, Ranchi, thereby acquitting the accused / opposite party no.2 herein of the charge under Section 138 of the Negotiable

Instrument Act.Â

The Complainant alleged dishonour of the cheque bearing no. 912765 dated 12.05.2013 of Rs.2,00,000/-Â drawn on Andhraa Bank, Ranchi Branch

issued in favour of the complainant, on presentation to the drawee Bank i.e., Canara bank, Ranchi on 23.07.2013 due to insufficient fund. After receipt

of return memo on 24.07.2013 legal notice was given on 12.08.2013 through registered post dated 14.08.2013 but despite that accused did not return

the amount. Therefore, the complaint case was filed.Â

The complainant had examined himself as C.W.1 and exhibited the cheque bearing no. 912765 dated 12.05.2013 of Rs.2,00,000/- as Ext.1; cheque

return memo dated 24.07.2013 as Ext.2 and legal notice dated 12.08.2013 as Ext.3.Â

The case of the defence was of denial. The accused in his statement under Section 313 of the Cr.P.C stated that the cheque was issued as

security. He had received legal notice.Â

Learned Trial Court finding the ingredients of the offence made out, convicted the accused for the offence under Section 138 of the N.I. Act.

The accused was sentenced to undergo R.I for 6 months and also ordered to pay Rs. 2, 50,000/- to the complainant by way of compensation. The

accused / opposite party no.2 herein went in appeal. Learned Judicial Commissioner, Ranchi heard the appellant and the complainant and also

scrutinized the evidence on record.Â

It came to a finding that the necessary ingredient of existence of legally enforceable debt to constitute an offence under Section 138 of the N.I. Act

was not established. Learned Trial Court had therefore not appreciated the evidence in proper manner. Accordingly, the judgment of conviction and

order of sentence was set aside.Â

Learned counsel for the petitioner submits that all the ingredients to constitute the offence were fulfilled on the part of the complainant. The

accused did not adduce any evidence in his support. He failed to rebut the presumption attached to Section 118 and 139 of the N.I.Act. The

complainant in his examination â€"in-chief had on affidavit stated that the accused had taken Rs.2,00,000/- as loan in lieu of which the instant cheque

was issued. The complainant therefore was able to show the existence of legally enforceable debt which the learned Appellate Court had failed to

appreciate. As such the impugned judgment is bad in law. Petitioner may be granted special leave to appeal to assail the findings before this Court in

appeal.Â

Learned A.P.P. has supported the findings of the learned Appellate Court. He submits that mere fulfillment of the ingredients relating to issuance of

cheque; its dishonour on presentation by the Bank; giving of legal notice and refusal to pay, alone would not constitute the offence unless the

complainant is able to establish the existence of legally enforceable debt on the presumption having been rebutted by the accused on the test of

preponderance of probabilities. Learned Appellate Court has appreciated the materials on record in the light of the allegation made in the complaint

and rightly came to a finding in favour of the accused, which deserves no interference.Â

We have considered the submission of learned counsel for the parties, gone through the impugned judgment and the judgment passed by the learned

Trial Court. We have also gone through other material documents on record including the deposition of the complainant on affidavit in examination

â€"inchief and his cross examination as well. Learned Appellate Court has found that the complainant had conspicuously failed to make statement in

the complaint relating to advance of loan of Rs.2,00,000/- to the accused in lieu of which the alleged cheque was issued by the accused. Though in his

examination-in-chief he had stated about giving a sum of Rs,2,00,000/- to the accused as loan but neither the date nor the mode of payment was stated

therein. On the other hand, the accused in his statement under Section 313 of the Cr.P.C had denied accusation and also stated that the cheque was

issued as security. In cross examination, complainant had clearly admitted at para 10,13 and 14 that he had nowhere mentioned about giving of loan of

Rs.2,00,000/- to the accused in the complaint. He had not mentioned the date, mode and manner of giving Rs.2,00,000/-. At the same time in his cross

examination the complainant also categorically admitted the fact that accused was tenant of his brother for the same period 2013-14 and that he left

the rented house due to water dispute. Even on perusal of the complaint petition, he reaffirmed that he had not mentioned of giving Rs.2,00,000 to the

accused. As such, the existence of legally enforceable debt as against the complainant was seriously in doubt. In that view of the matter, Appellate

Court finding error in the judgment of the learned Trial Court has acquitted the accused of the charge.Â

On consideration of the totality of facts and circumstances and the discussion made herein above, we do not find good grounds made out on the

part of the petitioner to grant special leave to appeal to assail the findings of learned Appellate Court in appeal. Accordingly, the instant petition is

dismissed.   Â

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