Acquittal Appeal (D.B.) No. 14 of 2011
---
Against the judgment of acquittal dated 5.7.2010 passed by the Chief
Judicial Magistrate, Lohardaga in Complain Case No. 114 of 2006.
Md. Nayeemuddin Ansari ... ... Appellant
Versus
1. The State of Jharkhand
2. Faruque Khan ... ... Respondents
---
For the Appellant : M/s. A. K. Kashyap, Senior Advocate,
Jawed Sultan & M. I. Khan, Advocate
For the Respondents : M/s. Sanjay Prasad & Rajeev Lochan,
Advocate
---
PRESENT
HON'BLE MR. JUSTICE R. K. MERATHIA
HON'BLE MR. JUSTICE P. P. BHATT
---
By Court Heard the parties finally.
2. This aquittal appeal arises out of the judgment dated 5.7.2010
passed by the Chief Judicial Magistrate, Lohardaga in Complain Case
No. 114 of 2006 acquitting the respondent no. 2 - Faruque Khan under
Section 138 of the Negotiable Instrument Act (hereinafter referred to as
'N. I. Act').
3. Mr. A. K. Kashyap, learned senior counsel appearing for
the appellant/complainant assailing the impugned judgment submitted
as follows. The trial court wrongly held that there was much delay after
service of legal notice to the accused and there was violation of
Section 138 of the N. I. Act.
According to the complainant the parties were friends and
the accused used to take financial help from the complainant. On
4.4.2006
, the accused was in urgent need of money. He approached
the complainant and requested to manage Rs. 2,63,000/- and assured
to return it within four months. He gave a cheque for the said amount
and requested to present it in August 2006. On this, the complainant
managed and gave the said amount to the accused. Such transaction
was effected on the same day i.e. 4.4.2006. The complainant
produced the cheque for encashment on 2.8.2006, but it was returned
on the same day with memo showing insufficient fund. The
complainant sent a legal notice on 14.8.2006 for making payment in 15
-2-
days. It will appear from Exhibit 4 – the postal acknowlegment, that
such notice was received by the accused on 22.08.2006. As per
Section 138 (c) read with Section 142 of the N. I. Act, the complaint
could be filed within one month of the date on which the cause of
action arose under Clause (c) of the proviso to Section 138. From the
date of receipt of notice, the accused was required to make payment
within 15 days as per the notice i.e. by 6th of the September 2006.
Admittedly, neither payment was made nor any reply to the said notice
was sent to the complainant. The complaint was filed on 10.10.2006.
It will be presumed that the delay of 4-5 days, if any, was condoned
while taking cognizance which power was vested with the Magistrate
under Section 142 of the N. I. Act. Moreover, the order taking
cognizance was never challenged by the accused.
He also submitted that the complainant was not required
to establish how and where the payment of the amount was made to
the accused as observed by the learned trial court. Learned trial court
took into account irrelevant consideration when it observed that the
complainant could not have possessed such a hugh amount. He
further submitted that it is also wrongly held that the complainant has
not established that the said amount related to any debt or any liability.
He relied on Section 118 (a) and 139 of the N. I. Act, and the
judgement reported in (2010) 11 SCC 441 Rangappa Vs. Sri Mohan.
4. On the other hand, Mr. Sanjay Prasad, learned counsel
appearing for the respondent no. 2 relying on the judgment reported in
(2003) 1 SCC 1 C. Antony Vs. K. G. Raghavan Nair , submitted that
the findings of acquittal in this case may not be interfered. Supporting
the impugned judgment he further submitted that the amount was filled
in other hand writing in the cheque. He also submitted that a complaint
case being Case No. 33 of 2008 was filed by the complainant (Exhibit
6) as the accused misused one of the 12 cheques given to him for
handing them over to the financier, and therefore, non-reply to the
notice was inconsequential.
5. To this Mr. Kashyap replied that such complaint case was
filed after two years of filing of the present complaint with a false and
improbable story, and moreover it was dismissed on 11.11.2008 for
non-prosecution. He further submitted that the defence raised in the
said complaint was not raised at any point of time by the accused. He
-3-
also submitted that admittedly the cheque was signed by the accused
and it is not required that the signatory himself has to fill the amount
etc. in the cheque. He also submitted that the parties filed a joint
compromise petition also in the trial court (Exhibit 2), in which the
accused agreed to pay Rs. 5,000/- per month but the same was also
not considered by the trial court.
6. In our opinion, the aforesaid submissions/contentions
raised on behalf of the parties, have not been considered/dealt with by
the trial court. As we are inclined to remand the matter, it will not be
proper to make any observations on the submissions of the parties. It
is made clear that this order will not prejudice them before the trial
court.
7. In the result, the impugned judgment is set aside and the
matter is remanded to the trial court for a fresh decision in accordance
with law. The parties are directed to cooperate in early disposal of the
matter. With these observations and directions, this appeal is disposed
of.
(R. K. Merathia, J.)
(P. P. Bhatt, J)
Jharkhand High Court at Ranchi
The 10th day of October 2011.
R.Shekhar/NAFR/Cp.3.