Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (U/S) NO.12 OF 2000 =========================================================== AGAINST THE JUDGMENT OF ACQUITTAL DATED 09TH SEPTEMBER, 1999 PASSED BY SHRI ANIL KUMAR SINGH, JUDICIAL MAGISTRATE, 1ST CLASS, PATNA INCOMPLAINT CASE NO. 155 (C) OF 1992/TRIAL NO. 835 OF 1999 =========================================================== VINOD KUMAR, SON OF SHRI DURGA PRASAD SHARMA, MANAGER, AJANTA ELECTRONICS, ARYA KUMAR ROAD, POLICE STATION KADAMKUAN, DISTRICT PATNA .... .... APPELLANT/S VERSUS 1. THE STATE OF BIHAR 2. DILIP KUMAR SINGH, PROPRIETOR, M/S RESTAURANT BLUE (BAR), SITUATED AT FIRST FLOOR OF JAI HOTEL, ASHOK RAJ PATH, POLICE STATION PIRBAHORE, DISTRICT PATNA .... .... RESPONDENT/S =========================================================== APPEARANCE : FOR THE APPELLANT/S : MR. ABHA SINGH, AMICUS CURIAE FOR THE RESPONDENT/S : =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT DATE: 05-07-2012 Sheema Ali Khan, J. Nobody appears on behalf of the appellant to press this appeal. Therefore, Ms. Abha Singh, Advocate is appointed as Amicus Curiae to assist this Court in this appeal on behalf of the appellant. 2. The appellant has preferred this appeal against the judgment of acquittal passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 155 (C) of 1992/Trial No. 835 of 1999 whereby the Trial Court has acquitted the Opposite Party No. 2 for the charges under [STATUTE] and Section Patna High Court CR. APP (U/S) No.12 of 2000 dt.05-07-2012 2 / 6 2 138 of the Negotiable Instruments Act. 3. The prosecution case, in short, is that the Opposite Party No. 2 issued a cheque of Rs. 99,200/- of State Bank of India, Patna Market Branch, on 08.06.1991. The complainant is the proprietor of M/S Ajanta Electronics and the Opposite Party No. 2 is the proprietor of M/S Restaurant Blue Fox (Bar), situated at Ashok Raj Path, Patna. The complaint is that the cheque was received in lieu of supply of one Television along with three stabilizers. The cheque was presented in the bank, but could not be encashed and was dishounored on 11.06.1991. It is asserted by the complainant that he sent legal notice in this case, which is marked as Exhibit 7. The receipt of the Postal Department is dated 22.03.1992. Thereafter, a complaint case has been filed under [STATUTE] and Section 138 of Negotiable Instruments Act on 23.03.1992.The cheque supposedly was dishonoured on 11.06.1991. 4. Three witnesses have been examined in this case for proving the allegations. The main issue that the witnesses have tried to support the case by proving the Exhibits submitted in Court such as the cheque and dishonoured slip dated 11.06.1991. Exhibit-4 is the agreement which shows that the accused owed money to the complainant on account of supply of Air Conditioners. Patna High Court CR. APP (U/S) No.12 of 2000 dt.05-07-2012 3 / 6 3 5. The Trial Court has examined the witnesses and has come to the conclusion that the appellant has not been able to show and prove that the cheque was issued by the Opposite Party No. 2. The reasons cited by the Trial Court is that the cheque has been signed by the appellant whereas the parties’ name as well as the amount is in a different ink, which prima facie indicates that the details in the cheque were not inserted by the accused of this case. Exhibit-6 is the slip of the Bank which indicates that the cheque had bounced for the reason “Not arranged for”. What is important is Exhibit 1/1 which is addressed to M/s Ajanta Electronics which is dated 17.5.1990 and it requests the complainant to supply two Air- conditioners window type and one split type along with voltage stabilizers and for this purpose a cheque of Rs. 25,000/- has been given by way of advance and it is said that the rest of the amount would be paid after 30 days of the installation of the Air- conditioners. Exhibit 2, 2/1, 3 and 3/2 are receipts produced on behalf of the complainant which indicates that there was supply of certain items to the accused however, no receipt was produced to show that he had received the Air-conditioner. The Court has referred Exhibit-5, 6 and 7 which is not available on the record, therefore, I have to rely on what has been stated by the trial court as there was no one assisting the Court assisting on behalf of the Patna High Court CR. APP (U/S) No.12 of 2000 dt.05-07-2012 4 / 6 4 accused persons and the Counsel appearing for appellant is Amicus Curiae, is similarly handicapped in assisting this Court. It has been noticed by the Trial Court that in paragraph 16 of the deposition of PW 3, he has stated that the cheque has been prepared in two different inks on two dates. It has also been recorded that there is no documentary proof that notice under Section 138 of the Negotiable Instrument Act was served on the accused. 6. Lastly, the Court has considered that the cheque was dishounored in the year 1991 where the complaint case has been filed on 23.03.1992. There is no explanation for the delay and as such it is argued that the case ought to be dismissed under Section 138 (c) of Negotiable Instruments Act. 7. With regard to the case under [STATUTE] , the Trial Court has disregarded the allegations under [STATUTE] . It is obvious that since the appellant has not been able to prove the agreement of giving and taking of the money and handling over of the Air Conditioners, it cannot be held that on dishonest intention to cause loss to the complainant can be made out so as to bring the case within the purview of [STATUTE] . 8. Section 138 of the Negotiable Instruments Act envisages certain conditions which have to be fulfilled before a Patna High Court CR. APP (U/S) No.12 of 2000 dt.05-07-2012 5 / 6 5 conviction can be recorded under Section 138 of

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.