Saturday 23 June 2012

dishonour of cheque -legal liability is not proved- complaint is liable to be dismissed

CR.A/682/2007 5/5 JUDGMENT


CRIMINAL APPEAL No. 682 of 2007

For Approval and Signature:

Date : 09/02/2011


1. The present appeal, under section 378(3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 27.12.2005 passed by the learned Metropolitan Magistrate, Court No.9, Ahmedabad in Criminal Case No.2710 of 1992, whereby the accused has been acquitted from the charges leveled against him.

2. The brief facts of the prosecution case are as under:

2.1 The appellant – original complainant Viral Castochem Pvt. Ltd. and Shree Chem Industry were engaged in the business of dyes and intermediates and chemical and therefore, due to business transaction, the outstanding dues of the complainant was of Rs.2, 03,476.41 Ps. from the accused. The accused issued cheque after several demands made by the complainant and the said cheque bearing No.57975 of Mahila Utkarsh Nagrik Sahakari Bank on 22.5.1992. With a view to deposit the said cheque, on 23.5.1992, the complainant sent the same in Union Bank of India but on 25.5.1992, the said cheque was returned with endorsement of “Refer to Drawer”. Thereafter, on 7.6.1992, the complainant through his advocate issued notice, but the accused had not responded the same and ultimately, the complainant lodged complaint against the accused under Section 138 of the Negotiable Instrument Act. The same was registered as Criminal Case No.2710 of 1992 before the learned Metropolitan Magistrate, Court No.9, Ahmedabad.

2.2 To prove the case against the present accused, the complainant has examined, in all 3 witnesses and defence side has examined one witness and also produced documentary evidence from both the sides.
2.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Magistrate acquitted the respondent of the charges leveled against him by judgment and order dated 27.12.2005.

2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Metropolitan Magistrate Court No.9, Ahmedabad, the appellant has preferred the present appeal.

3. It was contended by learned advocate Mr. Brahmbhatt that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the complainant has proved the whole ingredients of the evidence against the present respondent. Learned advocate has also taken this court through the oral as well as the entire documentary evidence. He further submitted that learned Magistrate while passing order of acquittal, the provisions of Section 119 of the Negotiable Instruments Act, has not taken into consideration. The complainant also proved Exhibit 18 Form for opening the bank Account and the signatures at Exhibit 16 also proved and Exhibit 17 shows the name of the present accused in the Deed of Partnership and the understanding between the partners and the accused was liable for the production, quality and all works regarding the partnership firm and Exhibit Marked 10/7 being Exhibit 28 Deed of Partnership were duly proved by the complainant and to come to the conclusion that Exhibit 28 and Exhibit 17 the complainant has not come with a clean hands cannot be proved. There is an absolutely legal debt of Rs.2,03,476.41 Ps. and the complainant has proved legal debt and, therefore, the cheque in question is to be considered for the same. Even the legal notice for dues was issued, but the accused remained silent regarding explanation for the rebuttal of the legal dues. Therefore, the judgment and order for acquittal of the accused is required to be quashed and set aside by allowing this appeal.

4. Learned Advocate Mr. Limbachiya appearing on behalf of the accused strongly opposed the submissions of the learned advocate for the appellant. He further submitted that even from the cross-examination of the witness, it is established that the appellant is not come with clean hands. He further submitted that regarding date of opening of Shree Chem Industry, the date is reflected from the invitation card as 22.11.1990, but the complainant denied the same and even he has no knowledge about the invitation card of the opening of the said industry. Therefore, he stated that the judgment and order passed by the learned Magistrate is just and proper and no interference is called for.

5. Heard learned APP Mr. Jani for the State.

6. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned advocates for the parties. The complainant has totally failed to prove his debts against the accused person and the complainant did not come with clean hands before the trial Court and on the contrary, the accused who was doing job with the complainant and the complainant with a view to not paying the amount of salary as well as bonus, the signature of the accused, was misused by the complainant against the accused by way of filing complaint under Section 138 of the Negotiable Instrument Act. The accused has demanded money of salary and bonus for doing job with the complainant, therefore, the complainant has misused the cheque against the accused person. Even the complainant has not proved the legal dues against the accused. From the perusal of other witnesses, who have been examined by the prosecution as well as defence witnesses, it is established that there is no kind of any legal dues against the accused. Even the complainant denied about the invitation card for opening Shree Chem Industry. Therefore, the trial court has rightly acquitted the accused from the charges levelled against him. Thus, from the evidence itself it is established that the complainant has not proved its case beyond reasonable doubt.

7. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the accused of the charges leveled against him.

8. 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.

9. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is required to be dismissed.

10. The Appeal is dismissed. The impugned judgment and order dated 27.12.2005 passed by the learned Metropolitan Magistrate, Court No.9, Ahmedabad in Criminal Case No.2710 of 1992 is hereby confirmed. Record and proceedings to be sent back to the concerned lower Court.

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