Narender Deswal vs Jagdish Dahiya

Sabina, J.—Respondent had faced trial in a complaint filed by the applicant u/s 138 of the Negotiable Instruments Act, 1881 qua dishonour of cheque dated 06.08.2007 in the sum of Rs. 5,00,000/-. Trial Court vide judgment dated 19.04.2011 ordered the acquittal of the respondent. Hence, the present application u/s 378(4) for leave to file an appeal by the complainant.

I have heard learned counsel for the applicant and have gone through the record available on the file carefully.

Trial Court, while ordering the acquittal of the respondent has held that respondent had reported to the bank that the cheque book in question had been lost in the year 2004. It has been further noticed by the Trial Court that the parties along with the relatives of the applicant had opened a partnership firm. The partnership deed was proved on record as Exhibit D-1. However the firm was closed down. It was also proved on record that as per the partnership deed, the bank account was to be operated by the respondent on behalf of the firm.

In these circumstances, the learned Trial Court rightly drew the presumption that partnership firm had not been working successfully and was closed down in the year 2004. The respondent had reported to the bank on 07.07.2004 qua loss of the cheque book. In these circumstances, the learned Trial Court rightly held that there was no occasion for the respondent to have issued the cheque in favour of the applicant on 06.08.2007.

In these circumstances, the reasons given by the Trial Court while ordering the acquittal of the respondents are sound reasons. Learned counsel for the applicant has failed to point out any misreading of evidence by the trial court.

Their Lordships of the Supreme Court in Allarakha K. Mansuri Vs. State of Gujarat, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.

A Division Bench of this Court in State of Punjab Vs. Hansa Singh , while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

To the same effect is the ratio of the judgments of the Supreme Court in State of Goa Vs. Sanjay Thakran and Another, and in Chandrappa and Others Vs. State of Karnataka,

Similarly, in Mrinal Das and Others Vs. The State of Tripura, , the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Hence, no ground for leave to file an appeal u/s 378(4) Cr.P.C. is made out. Dismissed.