Neeraj Gupta vs Vinod Chaurasia

This petition under Section 378 (4) of CrPC has been preferred for grant of leave to file the appeal against the judgment of acquittal dated 17/9/2014 passed by Judicial Magistrate First class, Gwalior in Criminal Case No.4323/2008 (Private Complaint) (Neeraj Gupta vs. Vinod Chaurasia), whereby the respondent has been acquitted of the offence under Section 138 of Negotiable Instruments Act and the private complaint of the applicant has been dismissed.

The facts of the present case in short are that the applicant/complainant and respondent/accused were well known to each other. The respondent/accused borrowed Rs.84,000/- from the complainant. For the repayment of the aforesaid borrowed amount, the respondent/accused had given cheques on different dates to the complainant which were presented before the concerned bank, but the cheques were dishonored due to non-availability of sufficient fund. Thereafter, the complainant sent notice to the respondent/accused, despite accused had not repaid the loan amount. Thereafter, the complaint was filed against the respondent/accused.

Learned counsel for the applicant has submitted that the trial Court has erred in acquitting the respondent/accused on the ground that the Court has not found proper notice sending to the accused. This is factual as well as legal error on the part of the Court below. The complainant has proved the case before the trial Court, despite the Court has erred in acquitting the respondent. Hence, prayed to grant leave to file the appeal against the judgment of acquittal of the respondent.

On perusal of the impugned judgment of the trial Court, it is apparent that the trial Court has rightly acquitted the accused as the offence under Section 138 of Negotiable Instruments Act only occurs when the cheque has been given to another person on account of any loan or transaction and the said cheque was produced within time before the bank concerned. Thereafter, the cheque should be dishonored. Said information with regard to dishonor of cheque is required to be given to the accused within time. Thereafter, if the accused fails to repay the amount, then within a month, the complaint can be filed, but in the present case as specifically mentioned in the impugned judgment, complainant has failed to prove that notice was given to the accused about dishonor of the cheques in question. Hence, in the considered view of this Court, the trial Court has rightly acquitted the accused. There is no substance in the present matter. Even if leave is granted, then the appeal of the complainant shall not succeed.

Consequently, this application for grant of leave to file the appeal has no substance and is accordingly rejected.

A copy of the order passed today be sent to the Court below along with its record for information.