Nitesh Jain vs Bablu

(1). This is a petition under Section 378(4) Code of Criminal Procedure, 1973 (for short 'The Code') seeking leave to appeal against the judgment dated 06.01.2018 passed by Judicial Magistrate First Class, Sanwer, District Indore in criminal case No.660/2013 whereby the respondent has been acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.

(2). Learned counsel for the applicant/complainant has submitted that complainant filed a private complaint against the respondent under Section 138 of N.I. Act and he has proved his case beyond reasonable doubt but the trial court wrongly acquitted the respondent/accused for the said charge. It is further submitted that respondent has taken a plea that he has not issued any cheque in favour of the applicant/complainant, his cheque book was lost and the same was misused by the applicant, however, he accepted that he has not given any information to the bank about missing of cheque book. The respondent has not given any suggestion, in the cross-examination of the applicant that his cheque book was lost, therefore, the defence taken by the respondent is an afterthought. It is further submitted that after receiving the information regarding the dishonour of the cheque, the complainant sent a notice to the respondent which was duly served on him, however, even after service of the notice, he has not sent any reply, therefore presumption under Section 118 of N.I. Act should have been drawn against the respondent, however, the trail court has wrongly disbelieved the statement as well as documents available on record. Hence, he prayed for grant to leave of appeal against the impugned judgement.

(3). I have heard appellant and perused the record and impugned judgment.

(4). Considering the statement of the applicant/complainant and the documents available on record, coupled with the fact that the respondent neither sent any intimation to the bank regarding missing of his cheque book nor he sent any reply of the notice given by the applicant. Respondent has accepted that he had borrowed a loan of Rs. 10,000/- from the applicant and he also issued three blank cheque. No suggestion has been given by the counsel for the respondent to the applicant that the cheque in question was issued for the purpose of security, which indicates that the applicant has not denied the issuance of cheque in favour of the applicant. Therefore, I am of the considered view that this is a fit case in which permission for grant of leave to appeal can be allowed. Accordingly, application filed by the applicant under Section 378(4) of Cr.P.C.is allowed and permission for grant of leave to appeal is granted, meaning thereby, the matter has to be admitted for final hearing.

(4). Appeal filed as a consequence of this order be registered and proceeded as per rules, as admitted.

(5). On payment of requisite process fee, office is directed to issue bailable warrant of Rs.10,000/- (Rupees Ten Thousand only) each against the respondent. He is also directed to furnish a bail bond in the sum of Rs.30,000/-(Rupees Thirty Thousand only) each with one surety in the like amount in the satisfaction of the CJM/Trial Court for his appearance before the Registry/Office of this Court on 17.09.2019 and on all other subsequent dates as may be fixed by the office in this behalf.

(6). With the aforesaid, M.Cr.C.No.7576/2015 is allowed and is accordingly, disposed of.

Certified copy, as per rules.