Laxman Singh vs State of Jharkhand

Heard learned counsel for the petitioner and learned counsel for the opposite party no. 2.

Petitioner seeks Special Leave to Appeal in terms of section 378(4) of Code of Criminal Procedure against the judgment of acquittal dated

05.02.2014 passed by the Learned Judicial Magistrate, 1st Class, Bokaro in C.P. Case No. 431/2008 / T.R. No. 342/2014, whereunder the sole

accused / O.P. No. 2 herein, has been acquitted of the charges under section 420 of the Indian Penal Code and section 138 of the N.I. Act.

Complainant / petitioner herein alleged that he is the owner of M/s Mamta Enterprises who works in Bokaro Steel Plant as contractor of the Firm

M/s Jagmohan Enterprises. They had friendly and family relationship. On the request of the accused, complainant gave him an amount of Rs.

3,42,000/- in the presence of the witnesses. On being demanded after one week, he gave him a cheque of Rs. 1,25,000/- in the name of M/s Mamta

Enterprises and assured to return rest of the amount after sometime. Said cheque was returned on presentation due to insufficiency of funds in the

bank. The accused again issued a second cheque of Rs. 2,17,000/- which was dishonoured as the account was closed. Thereafter, accused did not

make payment despite repeated demands. Therefore, complainant filed the case.

After solemn affirmation of the complainant and due inquiry, accused was summoned to face trial for the offences under section 420 of the Indian

Penal Code and section 138 of the N.I. Act. On his appearance, charges were explained to him. Complainant adduced two witnesses. CW-1 Dilip

Kumar Singh and C.W.-2 complainant himself. In course of examination, CW-1 identified the cheque of Rs. 1,25,000/- which was in the writing and

signature of Jagmohan. It was marked as Ext.-1 with objection of the defence; a cheque of Rs. 2,17,000/- which was in the writing and signature of

Jagmohan, was marked as Ext.-2; receipt dated 08.07.2008 and cheque return memo dated 08.07.2008 of Bank of India were marked as Ext.-3 &

3/1; cheque return memo of Bank of India dated 04.07.2008 regarding cheque no. 336514 was marked as Ext.-4; legal notice dated 19.07.2008 and

postal receipt were marked as Ext.-5 and 5/1; acknowledgement was marked as Ext.-5/2 and complaint petition having six pages and bearing

signature of the complainant and his Advocate, were marked as Ext. 6 series. After closure of the complainant’s evidence, statement of the

accused was recorded under section 313 Cr. Pc where he denied the allegation and claimed to be innocent.

Defence adduced two witnesses. DW-1 Binod Kumar Sinha and DW-2 Sunil Kumar Singh. DW-1 who was the Assistant Manager of Allahabad

Bank, Bokaro Steel City, has produced cheque no. 187286 dated 05.03.2007 of  Rs. 1,70,000/- issued by Jagmohan Enterprises in the name of the

complainant, which was marked as Ext.-A. He also identified the petition filed by the Advocate of the Bank bearing his signature and banks’

witness, which was marked as Ext.B series; DW-2 who was the Manager, Credit, Bank of Baroda, Sector-IV Bokaro, has produced statement of

bank account of M/s Jagmohan Enterprises for the period 01.12.2007 to 28.02.2008, which was marked as Ext.-C with objection of the complainant.

Further two cheques dated 05.12.2007 and

19.02.2008 issued by M/s Jagmohan Enterprises in the name of M/s Mamta Enterprises was marked as Ext.-D & D/1; certified copy of solemn

affirmation of the complainant in Complaint Case no. 268/2008 was marked as Ext.-E; certified copy of order dated 01.09.2008 in the said complaint

case was marked as Ext.E/1; certified copy of solemn affirmation in Complaint Case No. 398/2008 was marked as Ext.-F; certified copy of solemn

affirmation of the complainant in Complaint Case No. 649/2008 was marked as Ext.-G; certified copy of order dated 21.04.2009 in Complaint Case

No. 649/2008 was marked as Ext.-G/1 without objection of the defence.Â

Learned Trial Court considered the evidence on record in the light of ingredients of the offence under section 138 of the N.I. Act and held that the

accused had issued two cheques in favour of the complainant for payment of debt; these cheques were returned by the drawer banks due to

insufficient funds in the account and due to account being closed. Further, legal notice was sent by the complainant to the accused within 30 days of

the receipt of information of return of cheque on 19.07.2008 (Ext.-5). However, accused did not make payment within 15 days of the receipt of

notice. However, learned Trial Court upon perusal of material defence witnesses and documentary evidence adduced by them, arrived at an opinion

that the parties were on inimical terms, as evident from the certified copy of the documents related to C.P. Case No. 268/2008, C.P. Case No.

649/2008 and C.P. Case No. 398/2008. Out of these cases, C.P. Case No. 268/2008 was filed prior to this case. Ext.-F & F/1 are the documents

related to C.P. Case No. 398/2008 which shows that the accused of the instant case had filed case against the complainant Laxman Singh for dispute

related to cheques in question and for other reasons. Therefore, Learned Court inferred that the defence had been able to prove that the cheque

amount was already paid to the complainant and this fact was also brought before the court that there was estranged relation between the parties

before filing of this case. Complainant had not been able to prove before the court that the amount paid to him by the accused, was not against friendly

loan taken by the accused, for which this case has been filed. This fact was taken in favour of the defence. Learned Trial Court was of the opinion

that the complainant had failed to produce any document before the Court that the alleged friendly loan given to the accused remain unpaid due to

dishonor of cheque. Documents adduced by the defence as Ext.-C (Statement of Bank), Ext.-D and D/1 (cheques through which payment was made

by the accused to the complainant) proved to the contrary. As such, question of nonpayment of friendly loan by the accused to the complainant was

not proved. Further, complainant had failed to establish the ingredients of inducement at the beginning of the transaction to complete the offence of

cheating by any independent or documentary evidence. Both the parties had friendly and business relationship, therefore, no deceptive intention was

existing at the initial stage of transaction. Complainant had failed to prove the charges under section 420 of the Indian Penal Code against the accused.

Based on these findings, learned Trial Court held that the complainant had not been successful in establishing the basic facts and circumstances in his

favour and miserably failed to produce any cogent material against the accused. Accordingly, he was acquitted of both the charges.

Learned counsel for the petitioner submits that solemn affirmation of the accused as complainant in C.P. Case No. 398/2008 go to show that the

accused had not substantiated the payment of the amount due through these two cheques issued in favour of the present complainant. Statement of

Account adduced by the accused in the instant trial, also did not conclusively show return of friendly loan to the complainant. Dishonor of the cheque

was established and so were other ingredients of offence, but the Learned Trial court has erroneously concluded absence of any legally enforceable

debt against the accused. Learned Trial Court has committed serious error in appreciation of the evidence already on record. Findings of the Learned

Trial Court are therefore susceptible to be questioned in appeal, if Special Leave is granted.Â

Learned counsel for the opposite party no. 2 has supported the findings of the Learned Trial Court. He submits that the accused and complainant

were having friendly and family relationship. The accused had adduced relevant evidence in the nature of two defence witnesses who were Managers

of Allahabad Bank and Bank of Baroda. Statement of account of the accused Firm for the period 01.12.2007 to 28.02.2008 was also adduced apart

from one cheque of Rs. 1,70,000/- (Ext.-A) and two cheques dated 05.12.2007 and 19.02.2008 as Ext.-D & D/1. Relationship between the parties

become sour over the period of time, as would be evident from the number of complaint cases filed by the accused and complainant against each

other. Accused had filed complaint case earlier in point of time to the present one i.e. C.P. Case No. 268/2008 and also C.P. Case No. 398/2008

which have been duly taken note of by the Learned Trial Court before coming to a considered finding that the complainant had failed to establish the

ingredients of legally enforceable debt and existence of inducement or dishonest intention at the very beginning of their transaction. Complainant had

not adduced any documentary evidence to show the existence of legally enforceable debt. These findings are therefore well considered and do not

deserve interference.Â

We have considered the submissions of the learned counsel for the parties and gone through the impugned judgment as also relevant material

evidence relied upon by the learned counsel for the parties and discussed by the Learned Trial Court. From the discussions made herein-above, it

appears that ingredients relating to issuance of cheque, dishonor of cheque on presentation and sending of legal notice upon the accused for non-

payment of amount within the time stipulated, were established by the complainant. However, the evidence adduced by the accused in the nature of

two defence witnesses, who were Managers of two Banks and Statement of Accounts of the accused / opposite party no. 2 herein, as also cheques

(Ext.-A, D & D/1) led the Learned Trial Court to believe that the defence has successfully rebutted the presumption under section 139 of the N.I.

Act. It further appears that relationship between the parties had become sour on account of such criminal cases filed between them and by the

accused herein prior in point of time to the present complaint case. The accused had filed C.P Case No. 398/2008 against the complainant for the

dispute relating to cheque in question itself. However, complainant did not produce any documentary evidence or any other evidence to substantiate

the existence of legally enforceable debt against the accused. Since the relationship between the parties were friendly and on business terms and had

become sour, Learned Trial Court also found lack of deceptive intention at the initial stage of transaction between the parties. On consideration of

these facts and circumstances, we do not find that the petitioner has made out any good ground to seek Special Leave to Appeal to assail the findings

rendered in the impugned judgment. Therefore, the instant petition is without merit and is accordingly dismissed.Â