HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Crml Leave To Appeal No. 66 / 2013

Shyam Lal S/o Shri Gopal Lal Sharma, by caste Brahmin, Resident

of Village Sanwad, Tehsil, District Udaipur

----Appellant

Versus

Mahaveer Kumar S/o Shri Pyar Chand Ji Jain, Resident of Rawala

Chowk village Sanwad, Tehsil Mavli, District Udaipur

----Respondent

_____________________________________________________

For Appellant(s) : Mr. Deepak Menaria

_____________________________________________________

HON'BLE MR. JUSTICE VIJAY BISHNOI

Order

18/05/2017

This criminal leave to appeal has been filed by the appellant

seeking leave to file appeal against the judgement dated

04.05.2013 passed by the Additional Chief Judicial Magistrate,

Mavli, District Udaipur (hereinafter referred to as the ‘trial court’)

in Regular Criminal Case No.311/2011, whereby the trial court has

acquitted the accused respondent for the offence punishable under

Section 138 of the Negotiable Instrument Act.

Brief facts of the case are that appellant filed a complaint

under Section 138 of the Negotiable Instrument Act before the

trial court against the accused respondent Mahaveer Kumar with

the allegation that on 30.06.2007, he has advanced a loan of

Rs.2,00,000/-to the accused respondent and he has given him a

cheque No.205952 dated 24.01.2008 for repayment of the said

loan. It is alleged that the said cheque was presented in the

concerned Bank on 10.06.2008 for realisation, however, the same

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[CRLLA-66/2013]

was returned with remark “account closed”. It is stated that a

registered notice was sent to the accused respondent which was

served upon him but despite that the loan amount was not paid to

the appellant.

The trial court took cognizance against the accused

respondent for the offence punishable under Section 138 of the

Negotiable Instrument Act and framed charge against him for the

aforesaid offence. The appellant got himself examined as PW-1

and got exhibited certain documents. The statement of the

accused respondent were recorded under Section 313 Cr.P.C.,

wherein he has stated that he never received any loan from the

appellant and cheque in question was given to him in security for

not filing first information report in the police in some Post Office

Scam, where wife of the accused respondent was the agent. The

accused respondent has also stated that after handing him over

the cheque as security, the appellant filed FIR after three days

and, therefore, he got the account closed. In defence, the

statements of wife of the accused respondent were recorded as

(DW-1) and the accused respondent has also appeared as (DW-2)

and ten documents were produced in defence.

Learned trial court after pondering over the evidence

produced by the parties has held that the appellant has failed to

prove beyond reasonable doubt that the cheque given to him by

the accused respondent was against a legally enforceable debt.

The trial court has observed that from the defence evidence, it is

clear that the cheque in question was given to the appellant by the

respondent as security for not filing FIR in relation to a Post Office

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[CRLLA-66/2013]

Scam, where the wife of the accused respondent was agent. The

trial court has also taken into consideration the fact that three

complaints were filed by the appellant against the accused

respondent for three different cheques and the total amount of the

said cheques is Rs. 4,84,000/- and the amount involved in the

Post Office Scam is also the same. The trial court has also taken

into consideration the fact that the amount of Rs.4,84,000/- has

already been recovered by the appellant from the respondent in

civil proceedings.

After taking into consideration the above facts and

circumstances of the case, the trial court has acquitted the

accused respondent for the offence punishable under Section 138

of the Negotiable Instrument Act.

Afte