The reliance on photocopies instead of original documents in a Section 138 complaint renders the evidence inadmissible, leading to dismissal of the appeal.

JUDGMENT :

Nalin Kumar Srivastava, J.

1. Present criminal appeal has been filed on behalf of the appellant Ishwar Sharan Tripathi against the judgment and order dated 27.9.2021 passed by Additional Session Judge, Court No.4/Special Judge, N.D.P.S. Act, Gorakhpur in Criminal Appeal No.18 of 2018 (Ashok Chand Vs. Ishwar Sharan Tripathi) arising out of Complaint Case No.20 of 2013 (Ishwar Sharan Tripathi Vs. Ashok Chand) under Section 138 Negotiable Instrument Act, Police Station Cantt. District Gorakhpur.

2. As per the factual matrix of this matter, a Complaint Case No.20 of 2013 (Ishwar Sharan Tripathi Vs. Ashok Chand) under Section 138 Negotiable Instrument Act was filed by the complainant Ishwar Sharan Tripathi, the present appellant, wherein after trial, the accused/present respondent no.2 was convicted by the Court of Additional Chief Judicial Magistrate-I, Gorakhpur under Section 138 Negotiable Instrument Act and sentenced for simple imprisonment for a period of 2 years alongwith fine of Rs.2,40,000/-with default sentence. The said conviction order was challenged by accused Ashok Chandra in Criminal Appeal No.18 of 2018 wherein the Appellate Court of Additional Sessions Judge, Court No.4/Special Judge, N.D.P.S. Act, Gorakhpur allowed the criminal appeal and by setting aside the judgment and order dated 31.1.2018 recorded acquittal of the accused/present respondent no.2, feeling aggrieved to which the present criminal appeal has been preferred by the complainant of the said complaint case.

3. The facts mentioned in the complaint disclose the complete story. It has been narrated in the complaint that due to some business need, the accused Ashok Chandra borrowed Rs.80,000/-on 25.11.2011 and Rs.60,000/-on 2.12.2011 from the complainant, but the same was not returned and subsequently a cheque valuing Rs.10,000/-was given to the complainant, which was encashed. Subsequently, another cheque bearing no.500096 amounting to Rs.20,000/-relating to Bank of Baroda, Branch University Chauraha, Gorakhpur was also given by the accused to the complainant on 30.9.2012, which was dishonoured on 4.12.2012 and was returned by the Bank due to insufficiency of fund in the account. Subsequently, on 15.11.2012, again a cheque no.694010 amounting to Rs.1,20,000/-was given by the accused to the complainant, but the same was again returned back by the Bank on account of insufficiency of fund in the bank account. On 10.12.2012, a legal notice was sent by the complainant, which was served and reciprocated by the accused by a reply notice dated 21.12.2012, but the borrowed money of the complainant was never returned by the accused and was usurped by him and the two cheques, which were given by the accused in lieu of the borrowed money, were dishonoured by the Bank due to insufficiency of fund in the bank account of the accused.

4. After filing of the complaint under section 138 Negotiable Instrument Act, the accused was summoned and after exhausting due procedure, judgement was delivered by the Court of Additional Chief Judicial Magistrate-I, Gorakhpur on 31.1.2018 and the accused Ashok Chandra was convicted as here-in-above mentioned.

5. Heard learned counsel for the appellant, learned A.G.A. for the State as well as learned counsel for the respondent no.2 and perused the record.

5. It is submitted by the learned counsel for the appellant that the Appellate Court did not appreciate the evidence on record in proper and legal manner whereas there was concrete and credible evidence disclosing the complicity of the accused/respondent no.2 in the commission of alleged offence. The original cheque and bank report was provided by the complainant to the Court which after perusal were returned back to the complainant by the Court and this fact finds place in the order-sheets of the case as well. The original documents, which the appellant possessed, were provided to the Court, but the learned Appellate Court made it a material ground for disbelieving the case of the c