Rakesh Kumar Sood vs Kesru Ram

Rakesh Kainthla, J

The present appeal is directed against the order dated 18.07.2013 passed by learned Judicial Magistrate First Class-III, Shimla (learned Trial Court) vide which the complaint filed by the appellant (complainant before learned Trial Court) was dismissed and the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of Negotiable Instruments Act (NI Act). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant had advanced ₹80,000/- to the accused. The accused issued a cheque of ₹80,000/- to return the amount. The complainant presented the cheque to his bank, but it was dishonoured with the endorsement "insufficient funds". The complainant issued a legal notice to the accused which was duly served upon the accused, but he failed to pay the amount. Hence, the complaint was filed before the Court for taking action against the accused.

Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act.

Learned Trial Court listed the matter for recording the statements of the complainant's witnesses on 18.07.2013, but no one appeared on behalf of the complainant. The learned Trial Court noticed that sufficient adjournments have been granted to the complainant to produce his evidence. He had failed to produce any evidence or appear before the Court. His presence was necessary for the examination of the witnesses. Hence, the learned Trial Court dismissed the complaint for want of evidence.

Being aggrieved by the judgment passed by learned Trial Court, the appellant/complainant has filed the present appeal asserting that learned Trial Court erred in dismissing the complaint for want of evidence. The learned Trial Court was bound to consider whether the personal attendance of the complainant was essential for the progress of the case. The learned Trial Court had the jurisdiction to adjourn the matter. Learned Trial Court had not exercised the jurisdiction to adjourn the case. The complainant was ready and willing to examine himself on 27.02.2013 but the matter was adjourned on the request of learned counsel for the accused. Learned Trial Court erred in holding that sufficient adjournments had been granted to the complainant. The complainant and his counsel enquired about the date from the Reader, who mentioned that the matter was listed on 19.07.2013.

Hence, the complainant and his counsel noted the date of hearing as 19.07.2013 but the matter was dismissed on 18.07.2013. There was sufficient reason with the complainant for non-appearance before the learned Trial Court. Hence, it was prayed that the present appeal be allowed and the order passed learned Trial Court be set aside.

None appeared on behalf of the appellant on 25.04.2026, when the matter was listed for arguments, hence none could be heard on behalf of the appellant.

Ms. Meenakshi Thakur, learned counsel for the respondent/accused submitted that the plea taken by the complainant that he had noted the wrong date of hearing is false. The certified copy of the order filed before this Court was applied on 18.07.2013, which could not have been applied as the complainant and his counsel were not aware of the listing of the matter on 18.07.2013. The complainant has taken a false plea and no concession should be extended to him. Hence, she prayed that the present appeal be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438:

"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

This position was reiterated in State of M.P. v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed:

We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471.

A similar view was taken in Tulasareddi v. State of Karnataka, 2026 SCC OnLine SC 89, wherein it was observed:

"29. From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, if the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal:

(a) whether the judgment of acquittal suffers from patent perversity;

(b) whether the judgment is based on misreading/omission to consider the material evidence on record;

(c) 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.'

(d) the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

(e) if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

(f) the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

The complainant asserted in para 6 of the appeal that the bail bonds were furnished after the lunch and complainant and his counsel were told to collect the date later on. Complainant and his counsel enquired about the date and the Reader orally told them that the matter was listed on 19.07.2013. It was asserted in para-7 that due to the mistake of noting down and giving of wrong date, the case was dismissed in default. The complainant and his counsel looked for their case on 19.07.2013 and found that the case was dismissed in default on 18.07.2013. This plea is patently false because the certified copy of the order annexed to the appeal shows that the application was presented on 18.07.2013. There is a force in the submission of Ms. Meenakshi Thakur, learned counsel for the respondent/accused that the complainant could not have applied for the certified copy on 18th, if he was not aware that the case was listed on 18th. As per his version he made inquiries on 19th and came to know about the dismissal on 19.07.2013. Therefore, he would have applied for the certified copy only on 19th and not on the 18th. Thus, the reason for non-appearance before the learned Trial Court is incorrect.

It was laid down by the Hon'ble Supreme Court in Dalip Singh v. State of U.P. 2010 (2) SCC 114, that a new creed of litigants has cropped up who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The Courts should evolve new rules to deal with such litigants and should not permit a premium on fraud. It was observed: -

"1. For many centuries, Indian society cherished two basic values of life, i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily lives. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era, and the people used to feel proud to tell the truth in the courts irrespective of the consequences. However, the post-Independence period has seen drastic changes in our value system. Materialism has overshadowed the old ethos, and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts in the court proceedings.

In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules, and it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final."

It was laid down in Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., 2025 SCC OnLine SC 641, that a litigant who suppresses material facts or makes a false statement cannot seek justice from the Court. His petition is liable to be thrown at the threshold. It was observed: -

It is settled law that a litigant who, while filing proceedings in the court, suppresses material facts or makes a false statement, cannot seek justice from the court. The facts suppressed must be material and relevant to the controversy, which may have a bearing on the decision-making. Cases of those litigants who have no regard for the truth and those who indulge in suppressing material facts need to be thrown out of the court. In paragraph 5 of the decision of this Court in the case of S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, it is held thus:

"5. The High Court, in our view, fell into patent error. The short question before the High Court was whether, in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. We are constrained to say that more often than not, the process of the court is being abused. Property-grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

Delhi High Court also held in Awaneesh Chandra Jha v. Anil Prasad Nanda, 2022 SCC OnLine Del 1866 that dishonesty must not be permitted to bear fruit, and once fraud is proved, on advantage derived by a person has to be withdrawn. It was observed:-

"60. The unquestioned legal position is that dishonesty must not be permitted to bear fruit; that collusion or conspiracy with a view to deprive others of their rights would render a transaction void ab initio; that suppression of material documents would amount to fraud upon the court; that once fraud is proved, all advantages gained by the fraud can be taken away; and that every court has inherent powers to recall its orders obtained by fraud since such order is non est. This necessarily implies that at any stage of a proceedings, if it appears to a court that fraud is being played upon it, the court must not permit a litigant to obtain any benefit and must nip any such effort in the bud."

Therefore, the appellant cannot be granted any relief when he has founded his claim on the falsehood.

Even otherwise, there is no error in the order passed by learned Trial Court. The record shows that the matter was listed for recording the statement of the complainant and his witnesses on 18.07.2013. No one was present. Learned Trial Court had rightly noticed that the presence of the complainant was necessary for recording his statement and the statements of his witnesses. The matter could not have been adjourned because the matter was listed for recording the complainant's evidence and the evidence was required to be recorded. Therefore, the necessary condition laid down under Section 256 of the Cr.P.C. was satisfied and learned Magistrate was justified in dismissing the complaint.

It has been stated in the memorandum of appeal that sufficient opportunities were not granted and only two opportunities were granted. This is not correct. The record shows that the matter was listed for recording the statements of the complainant's witnesses on 07.11.2012, 27.12.2012 and 27.02.2013. Therefore, three adjournments had already been granted. Proviso to Section 309 (2) of Cr.P.C. clearly provides that no adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party. No such circumstances were shown to the learned Trial Court and the adjournment could not have been granted by the learned Trial Court in view of Section 309 of the CrPC.

Therefore, the learned trial Court had taken a reasonable view while dismissing the complaint and no interference is required with the reasonable view of the learned Trial Court, even if, another view is possible.

No other point was urged

In view of the abvoe, the present appeal fails, and it is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent/accused is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

Records be sent back to the learned Trial Court forthwith, along with a copy of the judgment.