CRM No. 145-MA of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh CRM No. 145-MA of 2010 (O&M) Date of decision: 23.7.2010 Devinder Singh ....... Appellant Versus Balwant Singh Grewal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Divyadeep Walia, Advocate, for the applicant-appellant. **** SABINA, J. The respondent was tried for an offence under Section 138 of the Negotiable Instruments Act, 1881. However, vide impugned judgment dated 9.11.2009, Judicial Magistrate, Ist Class, Patiala acquitted the respondent of the charge framed against him. The applicant-complainant has filed this application under Section 378 (4) of Cr.P.C. with a prayer for grant of leave to file an appeal against the order mentioned above. The case of the complainant, as noticed by the trial Court in para No.1 of its judgment, reads thus:- “The present complaint has been filed by complainant Devinder Singh against the accused Balwant CRM No. 145-MA of 2010 (O&M) 2 Singh Grewal under Section 138 Negotiable Instruments Act, on the averments that the complainant and accused are known to each other for the last so many years. The complainant and accused used to deal in sale purchase of buffaloes and were having mutual faith and confidence. On 22.9.2001 the accused approached the complainant for purchase of 3 buffaloes and after due negotiation, the complainant agreed to sell 3 buffaloes to the accused for consideration of Rs.70,000/-. The complainant handed over possession of 3 buffaloes to the accused and the accused in consideration thereof to discharge his liability, issued a cheque No. 011249 dated 22.9.2001 for an amount of Rs.70,000/- drawn on State Bank of Patiala, Sai Market Branch, Patiala in favour of complainant and also assured that the cheque shall be encashed on its presentation. The complainant deposited the cheque with his banker Patiala Central Cooperative Bank Ltd. Branch Office, Village Lang, Tehsil and District Patiala but the cheque was returned back un-paid vide memo dated 5.10.2001 for the reason “Insufficient Funds”. The complainant got served a legal notice dated 11.10.2001 to the accused through registered post, but the accused failed to pay the amount of cheque even after the expiry of notice period. The accused intentionally issued said CRM No. 145-MA of 2010 (O&M) 3 cheque to deceive the complainant knowing that his banker will not honour the cheque. Hence, the present complaint.” After hearing learned counsel for the applicant-appellant, I am of the opinion that the present application deserves dismissal. Learned trial Court, in para 28 of its judgment, has observed as under:- “During the cross-examination of complainant on 22.8.2008, the complainant has categorically denied his signatures on other documents inter-alia the affidavit dated 3.3.2006 Ex.CW1/A. This was the affidavit tendered by the complainant to be read as his examination in chief. The question as to whether the verification on the affidavit is proper or not is not material as complainant has denied his signatures on the affidavit itself. The denial of signatures by the complainant on his affidavit is sufficient to ignore the affidavit of complainant as the complainant himself has not supported the same during his cross-examination. Even otherwise, if the denial on the part of complainant was due to weak eye- sight, the complainant while deposing as CW1 could have been put to re-examination after his cross-examination was over. During the further cross-examination, the accused has not put forward any explanation regarding CRM No. 145-MA of 2010 (O&M) 4 denial of his signatures on the affidavit Ex.CW1/A and has not been put to re-examination to clarify the said position in any manner. The fact remains that the statement of complainant is there on the file denying his signatures on the affidavit Ex.CW1/A. Due to this reason, the affidavit Ex.CW1/A is liable to be ignored and cannot be read in evidence. Since the affidavit Ex.CW1/A is liable to be ignored, there remains no evidence of the complainant on the file against the accused. In the absence of any such evidence on the file of the complainant, the accused is certainly to be given the benefit of doubt and is to be acquitted of the notice framed against him. Point No.4 is accordingly, decided in favour of the accused and against the complainant.” Although the applicant-appellant had been successful in establishing that the cheque in question had been issued by the respondent yet while appearing in the witness box, the applicant- appellant had stated that the affidavit tendered by him in his examination-in-chief did not bear his signatures. In these circumstance, learned trial Court has rightly held that there remains no evidence against the respondent as the affidavit of the applicant- appellant, led in his examination-in-chief, could not be read in his evidence. The reasons given by the trial Court, while dismissing the complaint filed by the applicant-appellant, are sound reasons. CRM No. 145-MA of 2010 (O&M) 5 Learned counsel for the applicant-appellant has failed to point out any mis-reading of evidence on record. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. (SABINA) JUDGE July 23, 2010 anita CRM No. 145-MA of 2010 (O&M) 6