1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.304 OF 2007 Bhumesh Kumar …Appellant Versus Ranvir Nanda …Respondent Dated: June 17, 2010 Mr. A.M. Saklani, learned amicus curiae on behalf of the appellant Mr. H.C. Pathak, learned amicus curiae on behalf of the respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 378(4) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 4.2.1994 passed by Chief Judicial Magistrate, Nainital in Criminal Case No.1605/1990, Bhumesh Kumar v. Ranvir Nanda, whereby the learned Chief Judicial Magistrate acquitted the respondent Ranvir Nanda of the charge under Section 138 of The Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act). 2. Brief facts of the case are that complainant Bhumesh Kumar (the appellant herein) filed a complainant before Chief Judicial Magistrate, Haldwani against the respondent Ranvir Nanda with the averments that the complainant was carrying on his business of stone, sand, concrete, etc. under the name and style Himalaya Stone Industries, Moti Nagar, 2 Haldwani, District Nainital and the respondent, who was the Chairman of Classic Construction Private Ltd., used to purchase above material from him. On the assurance of the respondent and in good faith, the complainant supplied the material of Rs.3,21,703/- to the respondent up to 17.5.1990 on credit basis through transport. It was alleged that Rs.2,56,743/- of the complainant was due on the respondent. After asking for the money many times, the respondent issued a cheque no.059108 dated 13.6.1990 payable at State Bank of India, Muradabad Division amounting Rs.1,00,000/- to the appellant on 1.6.1990. But the same cheque was dishonoured by the Bank due to insufficient funds. When said fact was brought in the knowledge of the respondent, he tendered his apology for it and assured to send the amount of cheque to the complainant on the same day. But the respondent did not sent the amount of cheque and send a telegram to the complainant informing that the payment is delayed and he would send the payment by the end of week. But even after expiry of the stipulated one week, the respondent did not remit any amount to the complainant. Thereafter, the respondent issued another Cheque No.059109 dated 30.8.1990 payable at State Bank of India, Muradabad amounting Rs.1,25,000/- in favour of the appellant and requested to present the said cheque in the bank on 3.9.1990. When the said cheque was presented by the appellant in the bank, it also got dishonoured due to insufficient funds. Thereafter, the appellant send a registered notice dated 8.9.1990 through his counsel to the respondent. Even after service of notice upon the respondent, neither he paid the amount to the complainant within fifteen days nor he gave reply of the 3 said notice to the appellant. Thus, this complaint was filed by the appellant against the respondent on 3.11.1990 before Chief Judicial Magistrate, Nainital, under Sections 420 of IPC and Sect. 138 of the Act. The complainant in support of his case examined himself u/s 200 Cr.P.C. and also got produced A.K. Saxena, Branch Manager, Union Bank of India, Haldwani u/s 202 Cr.P.C. 3. After perusal of the evidence recorded u/s 200 and 202 Cr.P.C., Chief Judicial Magistrate, Nainital summon the respondent u/Ss 420 IPC and Sect. 138 of the Act. 4. Thereafter the statement of the prosecution witnesses were recorded u/ 244 Cr.P.C. and after recording the same, charge u/s 138 of the Act was framed against the respondent/accused on 27.5.1993. The charge was read over and explained to the respondent/accused, to which he pleaded not guilty and claimed to be tried. 5. Thereafter the witnesses were cross- examined by the defence counsel. The prosecution in support of its case has filed photocopy of Cheque Ext.Ka-1 and Ka-2, notice Ext.Ka-3, receipt of registry Ext.Ka-4 and A.D. Card Ext.Ka-5. 6. Thereafter the statement of the respondent/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. He stated that neither any notice was received by him nor he made his signatures on A.D. 4 and nor he sent any telegram to the appellant Bhumesh Kumar. 7. After appreciating the evidence on record and hearing learned counsel for the parties, Chief Judicial Magistrate vide his judgment an dorder dated 4.2.1994 acquitted the respondent of the charge u/s 138 of the Act. Against the said judgment and order, the appellant has preferred the present appeal. 8. Sri A.M. Saklani, learned amicus curiae on behalf of the appellant argued that on the basis of the evidence discussed above, the case is proved against the respondent/accused beyond reasonable doubt. I do not find substance in the argument advanced by learned amicus curiae. Before further discussion it is pertinent to mention Sections 138 and 142 of the Act, which reads as under;- “138. Dishonour of Cheque for insufficiency, etc., of funds in the account.- Where any Cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the Cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to 5 one year, or with fine which may extend to twice the amount of the Cheque, or with both : Provided that nothing contained in this section shall apply unless – (a) the Cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, which is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the Cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the Cheque as unpaid; and (c) the drawer of such Cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the Cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purpose of this section “debt or other liability” means a legally enforceable debt or other liability. 142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the Cheque; 6 (b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to section 138; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.” 9. The trial court has acquitted the respondent on two grounds. First, signatures of the respondent on cheques Ext.Ka-1 and Ka-2 were not proved as such it was assumed that said cheques were not issued by the respondent. Second, signatures of respondent on the receipt was not proved and the notice was not served upon him. 10. A perusal of the notice Ext.Ka-3 dated 8.9.1990 transpires that the appellant through the notice made a demand of payment of Rs.2,56,743.00 within fifteen days. However, Cheque Ext.Ka-1 was of Rs.1,00,000/- and Cheque Ka-2 was of Rs.1,25,000/-, totaling Rs.2,25,000/-. As per Section 138(b) of the Act, the payee can makes a demand of the amount of the money equivalent to the Cheque only, but in the instant case, the appellant made a demand of money more than the amount of the Cheque unpaid. As such, the notice issued is not as per the spirit of law and further the complaint and proceedings on the basis of that notice are also not as per law and the entire proceedings on the basis of that notice are not legally correct. 11. Next point is that the respondent has denied his signatures on the receipt. Further, it is also not 7 known when the notice was served upon the respondent as receipt Ext.Ka-5 does not show any date. In that event, the appellant has not produced any evidence of the postal department which could have proved when the notice was served upon the respondent. Further, the respondent has also denied his signatures on the cheques Ext.Ka-1 and Ka-2. To prove the signatures of respondent on the said cheques and on the receipt, the appellant has not send the signatures of respondent to handwriting expert so as to ensure that the signatures on the cheques as well as on the receipt are of respondent. 12. Besides the above, it is settled law that where two views are possible and one of the views is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought 8 on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 13. On the basis of the evidence discussed above, I am of the considered view that the prosecution has been miserably failed to prove its case against the respondent Ranvir Nanda beyond reasonable doubt. Further, when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. 14. For the reasons as discussed above, I am of the view that the trial court was correct and justified in acquitting the respondent for the offence u/s 138 of the Act and I also concur the view taken by the trial court. 15. Resultantly, the appeal is dismissed. The judgment and order dated 4.2.1994 passed by Chief Judicial Magistrate, Nainital in Criminal Case 9 No.1605/1990, Bhumesh Kumar v. Ranvir Nanda, needs no interference by this Court and is hereby made affirmed. 16. Let the lower court record be sent back. (Dharam Veer, J.) 17.06.2010 RG 10 11 12 13 14 15