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Kishan Lal v/s State & Another

    S.B. Criminal Revision Petition No. 466 of 1999
    Decided On, 17 May 2022
    At, High Court of Rajasthan Jodhpur Bench
    By, THE HONOURABLE DR. JUSTICE PUSHPENDRA SINGH BHATI
    For THE Petitioner: Ashok Upadhyay, Advocate. For the Respondents: Mukesh Trivedi PP, Dharamveer Choudhary, Advocate.


Judgment Text
1. This criminal revision petition under Section 397 read with Section 401 Cr.P.C. has been preferred against the judgment dated 15.04.1999 passed by the learned Additional Sessions Judge No.2, Bikaner (‘lower appellate court’) in Appeal No.2/98, while allowing the appeal filed by accused-Alok, the judgment dated 02.12.1997 passed by the learned Civil Judge (Junior Division) & Judicial Magistrate First Class, Bikaner (‘trial court’) in Private Complaint No.70/92 (filed by complainant-Kishan Lal) was quashed and set aside; the learned trial court vide its judgment, held accused-Alok guilty under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and sentenced him to undergo one year’s simple imprisonment and a fine of Rs.5,000/-, in default of payment of which, the accused was to undergo further two months imprisonment.

2. Learned counsel for the complainant/petitioner submits that owing to the petitioner’s acquaintance with the accused, he borrowed a sum of Rs.15,000/- as a loan from the complainant/petitioner for his business needs. Learned counsel further submits that after some time, upon being demanded the said loan amount by the complainant/petitioner, the accused gave him a cheque bearing No.350922 dated 05.07.1991 drawing on the erstwhile State Bank of Bikaner & Jaipur, Branch-Public Park, Bikaner, for a sum of Rs.5,000/-; upon the said cheque being presented before the concerned Branch of the Bank on 06.07.1991, the cheque was returned by the Bank with the negative endorsement, on count of insufficiency of funds in the bank account of the accused, which clearly indicates that the cheque in question was dishonoured.

2.1 Learned counsel also submits that thereupon, a notice, through registered AD post, was sent by the complainant/petitioner to the accused on 17.07.1991, requiring him to pay the cheque amount, which was duly received by the accused, but despite that, the amount was not paid by the accused; hence, the complainant/petitioner submitted the aforementioned private complainant before the learned court below, seeking redress.

2.2 Learned counsel further submits that thereafter, on the basis of the statement rendered by the complainant/petitioner under Section 200 Cr.P.C., vide order dated 14.07.1992, the learned court below took cognizance against the accused under Section 138 of the Act; on 09.02.1996, the charge against him was verbally explained by the court to the accused, but he had denied such charge and claimed trial, and accordingly, the trial commenced.

2.3 Learned counsel further submits that the learned trial court, after hearing both the parties and examining the overall facts and circumstances of the case, passed the aforementioned judgment dated 02.12.1997, holding the accused guilty of the offence under Section 138 of the Act and sentenced him appropriately, as mentioned above.

2.4 Learned counsel also submits that against the aforementioned judgment of the learned trial court, the accused had preferred the aforementioned appeal before the learned lower appellate court, which however, was allowed, vide the impugned judgment dated 15.04.1999, while quashing and setting aside the judgment dated 02.12.1997 passed by the learned trial court in favour of the complainant/petitioner and acquitted the accused from the offence under the Act; hence, assailing the said impugned judgment of the learned lower appellate court, the complainant/petitioner has preferred the present criminal revision petition.

2.5 Learned counsel also submits that despite the factum of the amount in question being a legally enforceable debt, which was also substantiated and strengthened by the well reasoned speaking judgment passed by the learned trial court, the learned lower appellate court erred in not accepting the plea in regard thereto, as advanced by the complainant/petitioner.

2.6 Learned counsel further submits that the learned lower appellate court, vide the impugned judgment, also erred in holding that the cognizance could not have been taken by the learned court below, before 17.08.1992, but the same was taken much prior thereto; in regard thereto, learned counsel submits that the cognizance was rightly taken by the learned trial court, after being satisfied that the debt in question was a legally enforceable debt, coupled with the fact that the accused prima facie defaulted in making the necessary payment to the complainant/petitioner.

2.7 Learned counsel also submits that the learned lower appellate court further erred in holding that the accused was not given an adequate opportunity of rendering evidence in regard to prove as to which cheque was given by him to the complainant/petitioner against repayment of the loan amount, and which cheque was dishonoured, and further due opportunity of cross-examination was also not afforded to the accused; instead, as per learned counsel, such an opportunity was given to the accused, which is apparent on the face of the record. Moreover, as per learned counsel, the accused himself did not wish to produce any cogent and sufficient defence.

2.8 Learned counsel thus submits that in the aforementioned backdrop, the impugned judgment dated 15.04.1999 passed by the learned lower appellate court deserves to be set aside, while restoring the judgment dated 02.12.1997 passed by the learned trial court.

3. On the other hand, learned Public Prosecutor as well as learned counsel for the accused-respondent No.2 oppose the aforesaid submissions made on behalf of the petitioner.

4. Learned counsel for the accused-respondent No.2 submits that the judgment dated 02.12.1997 passed by the learned trial court was full of deficiencies – both on facts and in law – and the same were rightly rectified and corrected by the impugned judgment dated 15.04.1999 passed by the learned lower appellate court, and thus, the impugned judgment, which clearly meet the ends of justice, may not be interfered with by this Court, more particularly, when the learned lower appellate court has, in the impugned judgment, given cogent and reasoned findings.

5. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that the learned

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lower appellate court, while passing the impugned judgment in favour of the accused-respondent No.2 has taken into due consideration the overall facts and circumstances of the case as well as duly appreciated the evidence and material available on record of the case. 6. Thus, in the peculiar facts and circumstances of the case, this Court does not find any ground to be made out, so as to warrant any interference by this Court in the well reasoned speaking judgment impugned herein passed by the learned lower appellate court. 7. Consequently, the present petition is dismissed. All pending applications also stand disposed of. Record of the learned court below be sent back forthwith.
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