At, High Court of Punjab and Haryana
By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
For the Petitioner: B.B.S. Sobti, Advocate. For the Respondent: None.
1. The petitioner-appellant has moved this application under section 378 (4) read with section 482of the Code of Criminal Procedure seeking leave to appeal against the order of acquittal passed by the learned trial Court.
2. The petitioner-appellant filed a complaint under section 138of the Negotiable Instruments Act, 1881 (for short the Act) against the accused- respondent on the plea that a sum of Rs. 42,77,701/- was due on account of balance rice, quality cuts an differential costs of Bardana etc. for the crop for the year 1994-95. In discharge of the said liability the accused has issued different cheques in favour of the complainant. Cheques on presentation were dishonoured with the remarks "exceeds arrangements". It is the case of the petitioner appellant that after respondent-accused failed to pay the amount in spite of notice having been issued offence under section 138 of the Act was complete and the complaint was filed.
3. The accused were summoned to face trial and the complainant examined as many as six witnesses to prove its case. The allegations were denied by the accused persons and the learned trial Court was pleased to frame the following issue for consideration:
"1. Whether accused issued cheques No.102499 dated 20.4.1996, No. 102496 dated 29.4.1996, and No.10497 dated 29.4.1996 for Rs. 392500/-, Rs. 391000/- and Rs. 394000/- in favour of the complainant to discharge his liability and when same were presented in bank, same were dishonoured and hence, accused has committed an offence under section 138of the Negotiable Instruments Act ?
4. Learned trial Court on appreciation of evidence came to the conclusion that the cheques were not issued in discharge of debt or liability but were issued by way of security. This view by the learned trial Court has been affirmed in view of the admission made by C.W.4 Mohan Lal, District Manager and C.W.6 Harsh Kumar.
5. It was observed by the learned trial Court that the dispute with regard to the liability was pending before the Arbitrator and the Arbitrator passed an award in favour of the accused. Rather as per the arbitration award the accused persons were entitled to Rs. 1,12,256/- from the petitioner-appellant. However, the Court did not decide the matter on the basis of the said award. The Court, however, held that in the present case neither the cheques were issued in discharge of liability and was in fact given by way of security and secondly that the accused had failed to prove the service of statutory notice on the complaint.
6. Mr. BBS Sobti, learned counsel for the petitioner challenged the order passed by the learned trial Court on the plea that non-issuance of notice could not be a ground for acquittal of the accused as it was always open to the accused persons to make the payment within 15 days from the receipt of summons from the Court to escape the prosecution. In support of this contention reliance was paced on the judgment of Hon'ble Supreme Court in the case of C.C. Alavi Haji v. Palapetty Muhammed and Anr., 2007(3) RCR(Criminal) 185 : 2007(3) RAJ 177 (SC).
7. However, reliance of the petitioner on the said judgment is misconceived. Hon'ble Supreme Court in the said case was considering the fact whether the prosecution can be scuttled for want of notice only. However, it has not been laid down in the said judgment that even if the statutory notice is not issued to the accused still he can be convicted for the offence.
8. The learned counsel for the petitioner-appellant thereafter by placing reliance on the judgment of Hon'ble Karnataka High Court in the case of M/s S.T.P. Ltd. v. Usha Paints and Decorators and Anr., 2006(4) RCR(Criminal) 524 : 2006(4) RCR(Civil) 589 and the judgment of this Court in the case of M/s Mahaplasto Ltd. v. M/s Bhushan Steels and Strips Ltd. 2000 (1) Civil Court Cases 548 contended that even the cheques were issued as security or in discharge of liability of any other person it amounts to the liability which has been undertaken by the drawer of the cheques and therefore, the order passed by the learned trial Court cannot be sustained.
9. However, this contention of the learned counsel for the petitioner- appellant also cannot be accepted. In the present case a positive evidence has been brought on record that the cheques were taken by way of deserve to be acquitted.
10. It was finally contended by the learned counsel for the petitioner- appellant that in the present case the application filed by the accused for dismissal of the complaint has been accepted and therefore, the order is liable to be set aside. The contention of the learned counsel for the petitioner-appellant is that as the learned trial Court has no power of review it was not possible to dismiss the complaint on the basis of the application.
11. This contention of the learned counsel for the petitioner-appellant is also misconceived as the learned trial Court did not dispose of the application under section 245 of the Act to discharge the accused rather the order has been passed by the learned trial Court after t
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he parties had led evidence and the accused have been acquitted of the charge after recording a positive finding that the prosecution has failed to prove the charge against the accused persons. Finding recorded by the learned trial Court is based on appreciation of evidence and is also in-consonance with settled principles of law which does not call for any interference by this Court. No ground is made out to grant permission to file an appeal. Consequently, the application and the appeal are ordered to be dismissed. Appeal dismissed.