IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER (Hanuman Sahay Vs. Hanuman Sahay Sharma & Anr.) S.B. CRIMINAL LEAVE TO APPEAL NO.106/2012(L) Date of Order : 28.01.2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Raghunandan Sharma, for the appellant. Mr. Amit Poonia, Public Prosecutor for the State. BY THE COURT :
1) For the reasons stated in the application under Section 5 of the Limitation Act, the delay of 150 days in filing the criminal appeal is condoned.
2) The application for condonation of delay stands allowed.
3) With the consent of the counsel for the appellant, the criminal leave to appeal is finally decided at this stage.
4) This criminal leave to appeal under Section 378(4) Cr.P.C. has been filed against the judgment dated 05.12.2011, passed by the Additional Civil Judge (Jr. Div.) and Metropolitan Magistrate No.12, Jaipur Metropolitan (hereinafter 'the trial court') whereby the learned trial court has dismissed a complaint under Section 138 of the Negotiation Instrument Act, 1881 (hereinafter 'the N.I. Act') filed by the complainant-appellant (hereinafter 'the complainant') against one Hanuman Sahay Sharma, the accused-respondent (hereinafter 'the accused').
5) I have perused the judgment and order dated 05.12.2011, passed by the trial court wherein the complaint has been dismissed fundamentally on the ground that from the documents on record, more particularly registered sale-deed dated 17.01.2007 (Exhibit P-1), it was evident that the sale of the land had been affected by the complainant, now the appellant, of his share in khatedari land to an extent of 2 bigha 11 biswas in favour of one Hanuman Sahay Saini and not in favour of the accused, Hanuman Sahay Sharma. The trial court also found that in Exhibit P-1 aforesaid, a specific clause indicated that the complainant had received the entire sale consideration in cash from the purchaser, Hanuman Sahay Saini for the transaction. Taking note of the aforesaid facts, the trial court held that the whole case set up against the accused, Hanuman Sahay Sharma, that he had issued cheque bearing No.610553 dated 18.01.2007 as consideration for the purchase of the said parcel of land covered under Exhibit P-1 did not entail a proof of the fact that the said cheque had been issued by the accused, Hanuman Sahay Sharma, towards the discharge in the whole or in part of any debt or liability as against him to the complainant. The learned trial court invoked the provisions of Section 91 of the Evidence Act to negate the evidence contrary to Exhibit P-1 sought to be led by the prosecution, more particularly its witnesses, Ratiram and Rameshwar Jat.
6) Counsel for the complainant has submitted that the complainant was a victim of fraud in being made to execute a sale-deed (Exhibit P-1) in favour of Hanuman Sahay Saini on the strength of part payment of Rs.3,00,000/- being covered by cheque No.610553 dated 18.01.2007 issued by the accused on the assurance that the said cheque could be encashed the following date towards the payment of part consideration of the land sold by the complainant under the sale-deed dated 17.01.2007 to Hanuman Sahay Saini. He submits that even though the sale-deed was executed and registered, cheque No.610553 dated 18.01.2007 bounced. He submits that the said cheque was towards the part discharge of the liability on account of the sale consideration for the sale-deed dated 17.01.2007. And thus the dishonouring of cheque No.610553 dated 18.01.2007 issued by the accused constituted an offence under Section 138 of N.I. Act inasmuch as in spite of notice of the dishonoured cheque to the accused, Hanuman Sahay Sharma, the said amount was not paid within the statutory period.
7) Having heard the counsel for the complainant and taking into consideration the submissions made, I am of the considered view that in the facts of the case for finding of an offence under Section 138 of N.I. Act, the complainant has no case for grant of leave against the order dated 05.12.2011, passed by the trial court. For one, Exhibit P-1 i.e. sale-deed dated 17.01.2007 indicates that the entire sale consideration for the sale of the complainant's land to Hanuman Sahay Saini has been paid. In this view of the matter, to hold the accused, Hanuman Sahay Sharma as liable for dishonoured cheque in respect of the same transaction / parcel of land is not conceivable. Aside of the aforesaid, it is also to be noted that the sale-deed dated 17.01.2007 records the factum of the receipt of the entire sale consideration in cash at the time of its execution. The cheque in issue which is stated to be in discharge of part consideration of the sale transaction is dated 18.01.2007. Offences under Section 138 of N.I. Act are a statutory creation and until the ingredients thereof are strictly supplied and proved no offence can be found. No matter the complainant is otherwise defrauded (as claimed) in the underlying transaction. In situation of the complainant being defrauded, his remedy would be under the Indian Penal Code not under Section 138 of N.I. Act.
8) Further, the limitations of this Court while entertaining criminal appeals against the order of acquittal by the trial court under Section 378(4) Cr.P.C. are limited. It has been held by the Hon'ble Supreme Court as also this Court that the leave to appeal against an order of acquittal is liable to be granted only if on a prima facie evaluation of the case before the Court, there are reasonable and substantial grounds for the challenge. It has been further held that where there are no reasonable ground of challenge or a chance of success in the appeal, leave to appeal against an order of acquittal ought not to be granted. From the facts of the case on record, the order of the trial court and consideration of the submissions of the counsel for the complainant, I am of the considered view that the judgment of acquittal of the accused-respondent by the trial court passed on 05.12.2011 is neither perverse, nor vitiated by misdirection in law. The judgment is a well considered and able judgment taking into account the sale-deed (Exhibit P-1) and the factum that the accused-respondent was sought to be made liable under Section 138 of N.I. Act in respect of consideration for a parcel of land sold by the complainant to one Hanuman Sahay Saini in respect of which he had received the entire consideration.
9) Consequently, I find no force in the criminal leave to appeal and the same stands dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A