Mr. Anil Gupta - Applicant @HASH Mr. Joginder Pal

Inderjit Singh, J. - CRM No. 24341 of 2015

Heard.

For the reasons mentioned in the application, the same is allowed. Delay of 122 days in filing the application seeking leave to appeal, is condoned.

CRM No.A-1307-MA of 2015

Applicant-Anil Gupta has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Joginder Pal, challenging the impugned judgment dated 20.01.2015 passed by learned Judicial Magistrate Ist Class, Pathankot, 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 1 of 3 further stated that balance of convenience lies in favour of the present applicant. It is, therefore, prayed that leave to appeal be granted.

As per the record, the complainant Anil Gupta filed a complaint against accused Joginder Pal under Section 138 of the Negotiable Instruments Act. As per the complainant''s version, in valid discharge of his legal liability to repay the loan amount in part, accused issued account payee post dated cheque No.966025 dated 04.06.2011 for Rs. 3,20,000/-, in favour of the complainant with the assurance that the same shall be duly encashed on presentation. But on presenting the cheque for encashment, the same was returned back unpaid with the remarks ''signature differs''. It is further stated that account number has been wrongly mentioned. It is also in the complaint that from the very beginning, the intention of the accused was to cheat the complainant and accused has issued the cheque with the criminal intention to defraud the complainant. Legal notice was issued. When the payment was not made, then the complaint was filed within time.

On the basis of preliminary evidence, the accused was summoned under Section 138 of the NI Act. Notice of accusation was served upon the accused and witnesses have been examined.

Learned JMIC, Pathankot, after appreciating the evidence, acquitted the accused-respondent.

I have heard learned counsel for the applicant and have gone through the record.

I have gone through the judgment passed by learned Court below, which is correct, as per evidence and law. The evidence has been appreciated in right perspective. Nothing has been pointed out as to which material evidence has been misread and which material evidence has not 2 of 3 been considered by the Court below. Nothing has been pointed out at the time of arguments as to how the findings are perverse and what illegality has been committed by the Court below.

First of all, no particulars of the loan amount have been given. Nothing has been mentioned as to when the loan was demanded back and on which date the cheque was issued. It was simply stated to repay the loan amount in part, the post dated cheque in question was issued in 2011. Even, there is nothing on the record as to how much loan was advanced.

Furthermore, as per the case of the complainant itself, the cheque is not from the account of the accused, therefore, one of the necessary ingredient is missing. The Court also discussed the statement of the complainant where he deposed that he does not know whether his complaint in respect of cheque No.966030 was dismissed. There is nothing as to how the loan was paid to the accused i.e. whether in cash or through negotiable instrument. No expert has been examined to prove the signatures of the accused as the memo states ''signature differs''.

Keeping in view the above discussion, I find that impugned judgment dated 20.01.2015 passed by learned JMIC, Pathankot, 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.