Rajendra Kumar @ Rajesh Kumar Balkishan Agrawal vs State of Gujarat

Z.K. Saiyed, J.—The appellant original complainant has preferred the present appeal u/s 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 22nd April 2010 passed by the learned Metropolitan Magistrate Negotiable Instruments Act, Court No. 6, Ahmedabad, in Criminal Case No. 1468 of 2008 for the offences punishable u/s 138 of the Negotiable Instruments Act, 1881 by which the learned Judge was pleased to acquit the opponent No. 2 accused of the charges levelled against him.

The short facts of the complainant is that the present appellant-complainant is a businessman and is running a proprietorship concern in the name and style of Rajendra Sales Agency. It is the case of the complainant that the opponent No. 2 accused is also a businessman and is running a proprietorship concern in the name and style of Hastak Corporation. As per the case of the complainant, the complainant-present appellant and the accused opponent No. 2 knew each other as there were business relations between them. It is the case of the complainant-present appellant that at the request of the opponent No. 2 accused, the appellant-original complainant advanced loan of Rs. 3,00,000 to the opponent No. 2 accused in installments. It is also the case of the complainant-original appellant that in this connection the opponent No. 2-accused issued a cheque in the name of Rajendra Sales Agency in the capacity of proprietor of Hastak Corporation bearing No. 889015 dated 1st October 2007 of Rs. 3,00,000 drawn on Union Bank of India. Ellisbridge Branch. It is the case of the present appellant that however, upon presenting the said cheque for clearing on 6th October 2007, the same was dishonoured due to reasons "Payment stopped by drawer" and "insufficient balance". The said fact came to the notice of the appellant on 8th October 2007. It is the case of the complainant that therefore the appellant original complainant issued notice dated 18th October 2007 by Registered Post A.D.; which is duly served upon the opponent No. 2 accused. Though the said notice was served upon the opponent No. 2 accused, the opponent No. 2 has not repaid the cheque amount, appellant-original complainant filed a criminal complaint against the opponent No. 2 accused u/s 138 of the Negotiable Instruments Act in the Court of Metropolitan Magistrate Court No. 2, Ahmedabad.

Thereafter summons was issued against the opponent No. 2 accused and as the opponent No. 2 accused has not pleaded guilty, evidence on behalf of the appellant-complainant was exhibited. The prosecution has produced oral as well as documentary evidence in support of the case. After filing closing pursis, further statement of the opponent No. 2 accused was recorded u/s 313 of the Code of Criminal Procedure, 1973. In his statement, the opponent No. 2 accused has denied the case of the prosecution and claimed to be tried and also filed written statement.

Thereafter, trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Judge was pleased to acquit the opponent No. 2-accused from the charges alleged against him by the Judgment and Order of acquittal dated 22nd April 2010.

Being aggrieved and dissatisfied with the said Judgment and Order of acquittal dated 22nd April 2010 passed by the learned Metropolitan Magistrate Negotiable Instruments Act, Court No. 6, Ahmedabad in Criminal Case No. 1468 of 2008, the appellant-original complainant, has preferred the abovementioned Criminal Appeal.

Heard Mr. Pankaj Soni, learned counsel for the appellant and Mr. H.L. Jani, learned Additional Public Prosecutor appearing for the opponent No. 1 State. I have also gone through the papers produced before me and the Judgment and Order passed by the learned Magistrate.

Mr. Soni, learned counsel for the appellant, has contended that the Judgment and Order of acquittal passed by the learned Judge is not proper, legal and it is erroneous. He has also argued that the learned Judge has not considered the evidence of the witnesses. He has contended that though the statutory notice is served upon the opponent No. 2 accused, neither the opponent No. 2 accused has replied the same nor he has repaid the cheque amount. Thus, there is a clear-cut breach of Section 138 of the Negotiable Instruments Act, 1881. He has also contended that though the opponent No. 2 accused has not brought on record any evidence, the learned Judge has believed the case of the opponent No. 2 accused. He has also contended that the appellant has proved his case beyond reasonable doubt and produced sufficient evidence to show that there is legal and enforceable debt due payable from the opponent No. 2 accused; however, without appreciating the evidence produced on record by the appellant, the learned Judge has passed the impugned order. He has contended that the appellant has proved its case against the respondent No. 2 accused beyond reasonable doubt. He, therefore, contended that the order of acquittal passed by the learned Judge is without appreciating the facts of the case and evidence on record and is required to be quashed and set aside by this Hon''ble Court.

It is a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents-accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court. Hence, this appeal requires to be dismissed.

Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. (2007) 3 SCC 75 the Court has reiterated the powers of the High Court in such cases.

Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of M.P. AIR 2007 SCW 5589 Thus, the powers which this Court may exercise against an order of acquittal are well settled.

It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, .

Thus, in case the Appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

I have gone through the order of acquittal passed by the learned Magistrate. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned advocates for the parties.

The trial Court has after appreciating the oral as well as documentary evidence, observed that the appellant and the opponent No. 2 accused knew each other because of business relations between them. It is also observed by the learned trial Judge that the prosecution has failed to prove ingredients of Sections 118 and 139 of the Act. It is also observed by the learned trial Judge that cheque return memo and debit memo produced on record by the original complainant does not bear stamp of any Bank and therefore, as per Section 146 of the Act, the said documentary evidence cannot be considered. It is also observed by the learned trial Judge that the amount of Rs. 1,00,000 given by the original complainant to Hastak Corporation was received by the original complainant-present appellant vide cheque No. 889014. Thus, the cheque No. 999015 was towards the interest of the amount in question. Looking to this fact, present opponent No. 2 accused is proved his case. It is also observed by the learned Judge that the prosecution has failed to prove beyond reasonable doubt the ingredient of Section 138 of the Negotiable Instruments Act. The learned trial Judge has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court.

Thus, the appellant could not bring home the charges against the opponent No. 2 accused in the present appeal. The prosecution has miserably failed to prove the case against the opponent No. 2 accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt

Mr. Pankaj Soni, learned counsel for the appellant, is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial Court is vitiated by some manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record.

In above view of the matter. I am of the considered opinion that the trial Court was completely justified in acquitting the opponent No. 2-accused of the charges levelled against him.

I find that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the trial Court and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. The Judgment and Order of acquittal dated 22nd April 2010 passed by the learned Metropolitan Magistrate Negotiable Instrument Act, Court No. 6, Ahmedabad, in Criminal Case No. 1468 of 2008 is hereby confirmed. Bail bond, if any, shall stands discharged. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.