R.K. Gupta vs C.P. Tiwari

N.K. Gupta, J.—Heard on admission.

By the present application u/s 378(4) of Cr.P.C., the applicant has sought for grant of leave to appeal against the judgment dated 11.1.2013 passed by the JMFC Bhopal in RT No. 3480/2011 whereby the respondent was acquitted from the charge of offence punishable u/s 138 of the Negotiable Instruments Act (for short "N.I. Act")

The prosecution case, in short, is that the applicant entered into an agreement that he would sell his house situated at Jawahar Chowk, Bhopal in sum of Rs. 19,25,000/-. An agreement was executed on 8.10.2010 and it was agreed between the parties that entire sum shall be deposited with the applicant within three months from the date of contract. The respondent gave an advance cheque of Rs. 3,25,000/- and thereafter the remaining amount was to be paid to the applicant within three months. When the respondent was directed to give the remaining amount, then he was avoiding. Vide notice dated 24.2.2011 it was intimated that the advance amount shall be forfeited and thereafter the cheque dated 10.9.2010 for a sum of Rs. 3 lakhs was deposited before the State Bank of Bikaner, but it was dishonoured because the respondent directed the concerned Bank to stop the payment and thereafter after giving a notice etc. a complaint was filed for the offence u/s 138 of the N.I. Act.

After considering the prosecution evidence the learned JMFC acquitted the respondent for the offence u/s 138 of the N.I. Act.

After considering the submission made by learned counsel for the applicant, it appears that the respondent was not interested to purchase the property of the applicant, and therefore he neither paid the remaining sum nor permitted the Bank concerned for payment of Rs. 3 lakhs for which a cheque was issued. It is possible that the applicant would not interest to get the forfeiture of the advance amount given, but it is surprising that if the cheque was given for advance amount, as to why it was not encashed and when it was given to the applicant, why he kept for three months to get the remaining amount. Under such circumstances, when the respondent was not interested to purchase the property of the applicant, then no sum could be given to the applicant any more. The entire matter relates to civil transaction and the applicant has a remedy to proceed with the civil Court. If the cheque was dishonoured, then certainly the applicant was not entitled for any sum, because the contract was cancelled by the respondent. Under such circumstances, when the amount was not due to the applicant for which the cheque was issued, then no offence u/s 138 of the N.I. Act is made out against the respondent. The trial Court has rightly acquitted the respondent from the aforesaid charge.

On the basis of the aforesaid discussion, the acquittal directed by the trial Court appears to be correct. There is no reason so that any interference can be done in the impugned judgment passed by the trial Court. Consequently, the present application filed by the applicant u/s 378(4) of Cr.P.C. is hereby dismissed at motion stage.

A copy of this order be sent to the trial Court along with the record for information.