IMPORTANT POINT
Appeal against acquittal – While hearing appeal against acquittal, power of reviewing evidence must be exercised with great care and caution – Where two views are possible, view in favour of accused shall be accepted and be given weight.

JUDGMENT

Pankaj Purohit, J.—Vide order dated 07.05.2024, written submissions were called from learned counsel for the appellant. The same was produced on 09.05.2024, which is taken on record.

2. This is an appeal preferred by the appellant/ complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ‘Cr.P.C.’) against judgment and order dated 25.11.2004 passed by learned Special Judicial Magistrate-II, Dehradun in Criminal Case No.1127 of 2004 Manoj Nagpal Vs. Ashok Kumar, whereby, the said Court had acquitted the respondent No.2-Ashok Kumar for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as ‘the Act’).

3. The case of the prosecution set into motion by the appellant/complainant by filing a complaint before learned trial court with the averments that the appellant lived in a joint family and the respondent No.2-accused had business relations with his brothers for the last so many years and he also had good relations with the appellant/complainant. In the first week of November 2001, respondent No.2/accused came to the appellant and expressed a need of One Lakh rupees referring the above business relations. When the appellant expressed his inability to arrange such a huge amount, respondent No.2/accused told the appellant to give him whatever amount of money could be arranged within 20-25 days. In between, respondent No.2/accused came to the appellant/complainant several times and on 06.12.2001, complainant gave Rs.50,000/- in cash to the respondent No.2/accused, in lieu thereof, respondent No.2/accused handed over appellant/complainant a post-dated cheque No.055840 amounting to Rs.50,000/- drawn at PNB, Dehradun and assured the appellant/complainant that the cheque would be encashed on presenting the same in Bank. On 25.03.2002, respondent No.2/accused informed the appellant/complainant over phone not to present the cheque in Bank and requested him to present the same in the first week of April 2002, by which time, the money would come in his Bank account or he would give it to the appellant/complainant in cash. But even after the first week of April 2002, when respondent No.2/accused did not pay the amount under cheque in-question to him, he presented the cheque in the Bank, which was dishonoured by the Bank with the remark ‘account closed’. The appellant issued a notice through his advocate on 26.04.2002 to the respondent No.2/accused regarding dishonour of above cheque and demanded his amount, but the said notice was deliberately not received by the respondent No.2/ accused. It was received back by the appellant with a remark “ysus ls badkj”. Consequently, the complaint was filed by the appellant/complainant on 31.05.2002 before the court of Chief Judicial Magistrate, Dehradun under Section 138 of the Act.

4. The complaint filed by the appellant/ complainant was accompanied with documents Ext. Ka-1 written note of Ashok Kumar-respondent No.2, Ext.Ka-2 dishonoured cheque, Ext.Ka-3 endorsement of Bank while dishonouring the cheque with remark ‘account closed’, Ext.Ka-4 Bank Slip, Ext.Ka-5 Carbon copy of notice dated 26.04.2002, Ext.Ka-6 postal receipt of notice and Ext.Ka-7 registered envelope in which the original copy of notice with endorsement of refusal of respondent No.2/accused was sent. Apart from that the acknowledgement was also produced.

5. During trial, appellant/complainant got himself examined under Sections 200 and 202 of Cr.P.C., consequent to which, the respondent No.2/ accused was summoned under Section 138 of the Act. In his statement recorded under Section 251 of Cr.P.C., respondent No.2/accused pleaded not guilty and claimed for trial.

6. The appellant/complainant during trial examined himself as PW-1 and proved the aforesaid documentary evidence as mentioned in the Para 4 of this judgment. He refused to produce any other witness.

7. In his statement under Section 313 of Cr.P.C., respondent No.2