JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal is directed against the judgment dated 19.04.2018 passed in Criminal Case No. 19 of 2014, Birendra Singh Chauhan Vs. Sohan Lal Kala (for short, “the case") by the court of Chief Judicial Magistrate, Pauri Garhwal. By the impugned judgment and order, the respondent has been acquitted of the accusation under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act").

2. Briefly stated, according to the appellant, he filed a complaint under Section 138 of the Act, against the respondent on 08.01.2014. According to it, both the appellant and the respondent were known to each other. The appellant advanced Rs. 4 Lakh to the respondent. The respondent assured to return it within a period of six months. The respondent did not return the money. When the appellant made repeated requests, on 20.11.2013, according to the appellant, the respondent gave him two cheques of Rs. 3 Lakh and Rs. 1 Lakh each. The cheques, when presented, were dishonoured. Thereafter, the appellant gave a notice on 02.12.2013 to the respondent, but the respondent did not pay the money. Hence, the complaint.

3. After conducting inquiry in the case, cognizance was taken under Section 138 of the Act on 11.08.2017. The accusation was stated to the respondent. At this stage, the respondent replied that he had returned the money to the appellant. He admitted to have given the cheques to the appellant.

4. In his examination-in-chief, the appellant filed an affidavit. He was cross examined on 08.09.2014. The respondent was examined under Section 313 of the Code on 14.12.2017. At this stage, the respondent admitted to have given two cheques to the appellant of Rs. 3 Lakh and Rs. 1 Lakh each. It is the case of the respondent that thereafter, the appellant told it to him that the cheques had been lost. Therefore, the respondent gave Rs.1.5 Lakh, in cash to the appellant and also gave two cheques of Rs. 1.5 Lakh and Rs.1 Lakh to the appellant. But, the appellant presented all the cheques for payment in the Bank.

5. After hearing the parties, mainly on two grounds, the respondent has been acquitted. They are:-

(i) That there is evidence to show that the respondent had returned Rs. 4 Lakh as taken by him from the appellant.

(ii) That the statement of the appellant does not inspire confidence, because the handwritings on both the cheques are different, though, the appellant in his statement has stated that it is the respondent, who filled up the cheques, with one pen alone.

6. Aggrieved by the acquittal, the appellant is before this Court in appeal.

7. Heard learned counsel for the parties and perused the record.

8. This is an appeal against acquittal. There is no doubt that this is an appeal against acquittal. The powers of the appellate court are defined under Section 386 of the Code. It is as hereunder:-

“386. Powers of the Appellate Court. — After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence—

(i) reverse t