Surinder Kumar vs Pritam Chand

Rakesh Kainthla, J

The present appeal is directed against the judgment dated 21.03.2013 passed by learned Judicial Magistrate, First Class (II), Kasauli, District Solan (learned Trial Court), vide which the complaint filed by the appellant (complainant before the learned Trial Court) for the commission of an offence punishable under Section 138 of Negotiable Instruments Act (for short “N.I. Act”) was dismissed. (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 for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused had approached the complainant in June 2010 to seek financial assistance of ₹50,000. He promised to repay the amount within one month. Complainant advanced money to the accused, who issued a cheque of ₹50,000 to repay the amount. The complainant presented the cheque before his Bank, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant sent a legal notice to the accused asking him to pay the amount within 15 days of the receipt of the notice. The accused refused to receive the notice, and it was deemed to be served upon the accused. The accused failed to repay the money to the complainant. Hence, the complainant filed a complaint before the learned Trial Court for taking action as per the law.

The 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 N.I. Act, to which the accused pleaded not guilty and claimed to be tried.

The complainant examined Harpinder (CW1) and himself (CW2) to prove his case.

The accused, in his statement recorded under Section 313 of Cr.P.C., denied the complainant’s case in its entirety. He stated that he had not handed over any cheque to the complainant; rather, he had delivered the cheque to Harpinder, who had misused the cheque in collusion with the complainant. He examined Sanjeev Kumar (DW1), Harikrishna Sharma (DW2), and himself (DW3) to prove his defence.

Learned Trial Court held that the version of the accused that he had handed over the cheque to Harpinder was probable. The defence evidence proved that the accused had taken the loan from M/s Gur Sewak Finance owned by Harpinder. Harpinder denied in his cross-examination any association with Gursewak Finance. However, the defence evidence proved that he had filed a complaint as the proprietor of Gursewak Finance. This denial made the statement highly suspicious. The accused had successfully rebutted the presumption attached to the cheque. Hence, the complaint was dismissed.

Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal, asserting that the learned Trial Court erred in holding that Harpinder had deposed falsely, and his statement was not reliable. Learned Trial Court ignored the complainant’s testimony without any reason. The accused denied his signature on the power of attorney, bail bonds and surety bonds, which showed that he was making a false statement. Harpinder was the proprietor of Gursewak Finance, which was wound up in March 2009, and he was not the owner on the date of his deposition. Learned Trial Court did not consider this aspect. The accused had admitted the issuance of a cheque to Gursewak Finance, and a presumption arose under Sections 118 and 139 of the NI that the cheque was issued for consideration to discharge the debt/liability, which was ignored by the learned Trial Court. All the ingredients of Section 138 of the NI Act were duly satisfied, and the learned Trial Court erred in acquitting the accused. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

When the matter was listed for arguments, none appeared on behalf of the appellant; hence, none could be heard. I have heard Ms Heena Chauhan, learned counsel representing the respondent/accused.

Ms. Heena Chauhan, learned counsel representing the respondent/accused, submitted that the learned Trial Court had taken a reasonable view while dismissing the complaint. Harpinder (CW1) stated in his cross-examination that only ₹10,000/- was advanced in his presence. This was not clarified by re-examination. This statement made the complainant’s case highly doubtful. Harpinder (CW1) denied in his cross-examination that he was associated with Gursewak Finance; however, it was duly proved by the defence evidence that he had filed a complaint as a proprietor of Gursewak Finance. Therefore, the learned Trial Court was justified in discarding his testimony. This Court should not interfere with the reasonable view of the learned Trial Court while deciding an appeal against acquittal; therefore, she prayed that the present appeal be dismissed.

I have given considerable thought to the submissions 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 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of the 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:

“12. 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.”

A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed:-

“6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well- settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question.”

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

Harpinder (CW1) stated in his cross-examination that the complainant had paid ₹10,000 in his presence to the accused. This statement was not clarified in the re-examination and has to be accepted as correct. Harpinder Singh (CW1) was examined to prove that the complainant had advanced ₹ 50,000/- to the accused. His statement in the cross-examination that only ₹10,000 was advanced in his presence will make the complainant’s case suspect.

In similar circumstances, when a witness had supported the case of the defence, but was not re-examined by the prosecution to clarify his testimony, it was held in Ramsewak v. State of M.P., (2004) 11 SCC 259: 2004 SCC OnLine SC 477 that the benefit of the discrepancy would go to the defence. It was observed at page 265:

“14…. Even assuming that there is some doubt as to the interpretation of this part of his evidence since the same is not clarified by the prosecution by way of re-examination, the benefit of doubt should go to the defence which has, in specific terms, taken a stand that the FIR came into being only after the dead body was recovered….”

It was held in Javed Masood v. State of Rajasthan, (2010) 3 SCC 538: (2010) 2 SCC (Cri) 1176: 2010 SCC OnLine SC 347 that the defence can take advantage of any statement made in the cross- examination. It was observed at page 543:

“20. In the present case, the prosecution never declared PWs 6, 18, 29 and 30 “hostile”. Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence from relying on their evidence.

This Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) [(2005) 5 SCC 258: 2005 SCC (Cri) 1037] observed: (SCC pp. 270-71, paras 30-31)

“30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan[(2005) 5 SCC 272: 2005 SCC (Cri) 1050]. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared ‘hostile’. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor, and it was binding on the prosecution.

In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police, in which the police had gone to the Bahai Temple and apprehended the accused. When Goel did not support that case, the accused could rely on that evidence.”

The proposition of law stated in the said judgment is equally applicable to the facts in hand.”

Harpinder (CW1) denied in his cross-examination that his father was a proprietor of Gursewak Finance. He stated that his family members had no concern with Gurusewak Finance. This statement was false because he had filed an earlier complaint as a proprietor of Gursewak Finance. His denial in the cross- examination shows that he is not a reliable witness, and the learned Trial Court was justified in discarding his testimony.

The accused had specifically stated that he had taken the loan from Gursewak Finance and had handed over the cheques as security. He proved the receipts for the repayment of the loan. Thus, the version of the accused that he had taken the loan from Gursewak Finance was duly proved on record. Harpinder Singh denied in his cross-examination any association with Gursewak Finance, which made his testimony doubtful. Thus, the learned Trial Court had rightly relied upon the defence version that the cheque was handed over to Harpinder Singh at the time of taking loan.

It was submitted in the memorandum of appeal that Gursewak Finance had closed down in 2009, and the statement of Harpinder was correct on the date of deposition. This submission is without any factual foundation as no evidence was led to prove this fact.

It was submitted in the memorandum of appeal that the testimony of the accused was false because he had denied his signature on the power of attorney and the bail bonds. This submission will not help the complainant. The complainant was required to prove his case beyond a reasonable doubt, and his case was not proved by the falsity of the defence.

No other point was urged.

Therefore, the learned trial court had taken a reasonable view which could have been taken based on the evidence led before it, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible.

In view of the above, the present appeal fails, and the same is dismissed, so also the pending applications, if any.

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 ₹50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/ learned Trial Court which shall be effective for six months with a stipulation that in the event of a 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.

A copy of the judgment, along with the record of the learned Trial Court, be sent back forthwith.