Santosh Kumar Tiwari vs Prem Narayan

Subhash Kakade, J.—By means of filing the present application for leave to appeal under Section 378 (iv) of the Code of Criminal Procedure, 1973, the applicant/complainant has assailed the order of acquittal passed by the learned JMFC, Bhopal in RCT No. 4220/2009 decided on 24.05.2013. By the judgment under challenge, learned trial judge acquitted the respondent, hereinafter referred as the accused from the charge of offence punishable under Section 138 of Negotiable Instrument Act.

To appreciate the say of the applicant/complainant, I would like to say that basic case that was placed before the trial Court in nutshell is that a written complaint was filed by the applicant against M/s Nirmal Enterprises and his three partners Raj Kishor Rathore, Kripal Shah, both are abscond and the present respondent Prem Narayan. One cheque amounting Rs.1,95,000/- was issued in favor of the complainant for payment legally recoverable amount for previous business transaction. When cheque was presented by the complainant for collection of payment the same was dishonored by Bank on the basis that �Exceeds arrangements�. The complainant given notice as per provision of the N.I. Act, but amount was not paid, hence the complaint were filed.

The learned trial Court has taken cognizance against the accused and proceed with the trial. The complainant examined himself and produced all related documents Ex.P-1 to P-10. The respondent while examined under Section 313 of the Code his defence was of total denial.

Learned trial Court has dismissed the complaint on the ground that the cheque was not issued by the respondent as the same was not of his bank account or joint account with other co-accused persons. It is also found proved that the legal demand notice was not sent to the respondent hence the respondent was acquitted from above mentioned charge. Aggrieved thereby, this application has been filed by victim for leave to appeal.

Shri Aseem Dixit, learned counsel appearing for the applicant/complainant has taken me through the entire judgment and main grounds of challenge mentioned in the memo of appeal, and pointed out error that has allegedly committed at the time of recording of the findings of acquittal by the learned trial Court.

After hearing learned counsel for the applicant, looking to the defence of respondent and further looking to the fact that applicant/complainant Santosh Kumar (PW/1), a government employee admitted that the cheque Ex.P-3 was not issued by the respondent Prem Narayan and same is not of his account. He also admitted that notice Ex.P-9 was not issued by the respondent Prem Narayan. These facts are well discussed in para 10 and 11 of the impugned judgment and then learned trial Court reached to the right conclusion in para 12 that on basis of above evidence the offence is not proved against the respondent hence acquitted him.

After perusing the record, I also found that the learned trial court has rightly appreciated evidence put forth by the complainant. Thus, the order acquitting the respondent has rightly been passed by the learned trial court which does not suffer from any perversity or illegality warranting any interference.

Learned counsel for the applicant could not point out any other material illegality or perversity in the impugned judgment as submitted by him during arguments. The settled principle of law need not to be repeat that unless the judgment of acquittal is palpably wrong and grossly unreasonable interference in a case for leave to file appeal by private complainant, is not called for.

The High Court can consider any special feature in a particular case and cannot ignore the effect which the granting of leave to appeal without due discrimination may have on the principles of normal presumption of innocence of the accused in our criminal law which has been further reinforced and strengthened by the order of acquittal by the trial court. Accordingly, unless the High Court is satisfied, considered in the light above, about some indications or error in a judgment of acquittal, the High Court may not grant leave.

Hence this application for leave to file appeal has no merit and is accordingly dismissed summarily.