IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1663 of 2001 Old No. 1877 of 1996 Dated of Decision: 05.04.2010 Dr. Virendra Veer Arya …Complainant/Appellant Versus M/s. Dhansarovar Financiers and others …Respondents Present: Mr. B.S. Adhikari (Amicus Curiae) for the appellant. Mr. M.K. Goyal, Advocate for the respondents. Hon’ble Nirmal Yadav, J. Present appeal is directed against the judgment dated 06.08.1996 passed by Sri Sanjiv Kumar, Judicial Magistrate, IInd, Dehradun, by which the respondents-accused have been acquitted for the offences under sections 406, 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act, 1881. Brief facts of the case are that appellant Dr. Virendra Veer Arya filed a complaint before Judicial Magistrate, Dehradun alleging that Kapil Agarwal and his wife Anita Agarwal were running a registered Financing Firm by the name of M/s. Dhansarovar Financiers. They presented to the complainant that if he deposited a fixed amount on regular basis, he will receive an attractive bonus on his deposit. Therefore, complainant opened an account bearing no.1381 with the said Firm and started depositing the amount. When his father fell sick, he required money for his treatment, therefore, a request was made for payment of Rs.3690/- to the accused persons. The accused issued a cheque bearing no.595103 dated 23.11.1993 of Rs.2952/- and also got the 2 signature of the complainant on the blank receipt voucher. The complainant refused to receive the said cheque on the ground that he wanted entire amount deposited by him. The accused respondents refused to make the payment of entire amount before the date of maturity. Accordingly complainant returned the said cheque to the accused and arranged the amount from other source. He deposited an amount of Rs.1785/- on 25.11.1993 vide receipt no.128784, therefore, his account became complete before the date of maturity. The accused issued a cheque bearing no.595104 dated 10.04.1994 for a sum of Rs.6,022/- and got the complainant’s signature on a blank receipt voucher. Complainant put his signature on the blank receipt voucher in good faith. He presented the aforesaid cheque in the Bank, however, the bank returned the cheque with the remark “Stop payment”. Accordingly, complainant got a demand notice issued to accused through his Advocate on 18.04.1994 for entire amount, deposited by him with 18% interest. The notice was received by the accused persons on 26.04.1994. The accused orally represented to the complainant that they had given instructions to this Bank for stopping the payment because they were in need of finances. They persuaded the complainant to present the cheque after some time. Accordingly, complainant presented the cheque on 30.04.1994. However, the cheque was again returned with same the remarks “Stop payment by drawer” and “insufficient funds”. The complainant, therefore, again got demand notice issued through his Advocate on 11.05.1994, to which the accused submitted reply on 13.05.1994 stating that they had already made the payment of Rs.7,000/- in cash to the complainant. According to the complainant, he has been cheated by the accused persons in order to misappropriate the amount deposited by him. Complainant never received a sum of Rs.7000/- in cash from the accused 3 persons. It was further submitted that accused have cheated a number of other persons in the area of Doiwala in similar manner and have now closed the Firm. After taking into consideration the evidence, the learned Judicial Magistrate summoned the accused persons and they were charged under sections 406, 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act, 1881. In order to prove his case, complainant produced Sri L. R. Mishra, Senior Branch Manager, District Co-operative Bank, Branch Doiwala and he appeared himself before the Court below. He also placed on record; Statement of account (Ex.Ka- 1), Cheque return memos (Ex.Ka-2 & 3), Receipt (Ex.Ka.4) by which amount was deposited by the complainant, the original cheque no. 595104 (Ex.Ka-5), registered notice dated 18.04.1994 (Ex.Ka.6), receipt of registered letter (Ex.Ka-7), second notice dated 11.05.1994 (Ex.Ka.9), receipts of the registered letters (Ex.Ka-10 & 11) and receipts by which the letter was received by accused persons (Ex.Ka.12 & 13). The accused was examined under section 313 Cr.P.C. and they denied all the allegations stating that they have made the entire payment alongwith interest to the complainant and nothing is due. In defence, Kapil Agarwal himself appeared as DW 1. He produced the payment voucher dated 25.11.1993 (Ex.Kha-1) bearing the signature of complainant with regard to the receipt of the cheque no.595104 of Rs.6022/-. He also produced the voucher receipt bearing signature of complainant (Ex.Kha-2) by which a sum of Rs.7000/- was paid in cash and reply of the notice (Ex-Kha-3). The learned Trial court after taking into consideration the entire evidence and documents and papers on record, acquitted the accused. 4 Heard Sri B.S. Adhikari (Amicus Curiae) for the appellant and Sri M.K. Goyal, learned counsel for the respondents and perused the material available on record. The respondents issued the cheque bearing no.595104 of Rs.6022/- which is Ex-Ka-5, in favour of Sri V.V. Arya on 10.04.1994. However, the complainant had needed the amount for payment of his father’s treatment, therefore, accused made the payment of Rs.7000/- in cash on the same day i.e. 10.04.1994. The complainant had put his signature on the receipt voucher (Ex.Kha-2) with regard to receipt the payment of Rs.7000/- in cash. He had also put his signature on the receipt with regard to cheque bearing no.595104 for amount of Rs.6022/-. Both the receipts bear the signature of Sri V.V. Arya. The plea of the complainant is that the accused got his signature on blank documents and later on they filled up the entries in said documents. However, nothing is on record to corroborate and substantiate the plea of the complainant. In case he had been cheated or his signatures were obtained by fraud and coercion, he would have certainly reported the matter to the Police or complained to some superior authority. Admittedly, complainant did not complaint to anyone till the date of filing of the complaint. He filed the complaint in the court on 27.05.1994 and moved an application to SHO, Doiwala, Dehradun after two months i.e. on 28.07.1994 in order to create evidence in his favour. There is no evidence on record to prove that accused persuaded the complainant to present the cheque again, so that it would be encashed. Rather, it is categorically stated that since entire payment alongwith interest had been made to the complainant and when the complainant presented the cheque, instructions to stop payment were given to the Bank by the accused. 5 Learned counsel for the appellant argued that if the accused had made the payment in cash, they would have asked the complainant to return the cheque issued by them. In reply to this, it has been specifically stated by Kapil Agarwal while appearing as DW1 that complainant and accused were related to each other and were having old personal relation. Therefore, he issued a cheque of Rs.6022/- after complainant represented that he required some amount for his fathers’ treatment and cheque could not be encashed on 10.04.1994 being sunday. The respondents arranged to make the payment in cash and complainant affixed the signature on receipt voucher in token thereof. The complainant continued delaying the return of the cheque inspite of the requests made by accused persons. There was no occasion for the complainant to present the cheque for encashment. In these circumstances, this Court is of the view that trial court has correctly acquitted the accused under sections 406, 420 the Indian Penal Code and section 138 the Negotiable Instrument Act, 1881. Accordingly no ground for interference is called for. The judgment and order passed by the trial court is affirmed. I find no merit in the appeal and the same is dismissed. (Nirmal Yadav, J.) JKJ 05.04.2010