ANUSUIYA DEWANGAN Vs. MOTIM SAHU

JUDGEMENT

(1.) This acquittal appeal has been preferred against the order dtd. 23/11/2010 passed by the learned Judicial Magistrate First Class, Gundardehi, District Durg (C.G.) in Complaint Case No.404/2008, whereby the learned Judicial Magistrate acquitted the respondents of the charges punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and passed stricture against the appellants for institution of criminal proceedings.

(2.) Brief facts of the case are that the complainant filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 alleging therein that there was agreement between the parties for sale of the land, upon which Rs.2.00 Lakh was received by the respondents but subsequently the agreement was cancelled by the parties on the ground of registration. Thereafter the cheque of Rs.2.00 Lakhs was given/returned back by the respondents to the complainant, which she tried to encash in the bank, but the same got dishonored. The complainant intimated the same to the respondents through legal notice, but no heed was paid to the same, which resulted into filing of complaint case before the Trial Court. The complaint filed by the complainants was dismissed by the Trial Court and instead a criminal case was directed to be instituted against the complainant for the reason that the forged and fabricated documents were submitted before the Court, against which the complainant filed criminal revision before this Court bearing Criminal Revision No.127/2011, which was dismissed as withdrawn vide order dtd. 28/2/2011 with liberty to file acquittal appeal, thereafter the present acquittal appeal has been filed.

(3.) Learned counsel for the appellant submits that the order passed by the learned Magistrate is illegal and against the provisions of law and also without jurisdiction. In spite of the evidence of PW 1 Ansuiya Dewangan, the complainant, PW 2 Gendlal Dewangan and PW 3 Chandrakishore Sahu, the respondents have been acquitted of the aforesaid charges. The agreement for sale of agricultural land (Ex P1) was executed on 18/8/2005 in the presence of both the parties along with witnesses and the appellants had given the advance sale consideration amount of Rupees Two Lakhs to the respondents but they have specifically denied that at the time of execution stamp paper was blank under these circumstance there is no question arise that aforesaid agreement is false and fabricated. Therefore the finding of the learned Court below regarding fabricated document of agreement is illegal and bad in law. The learned Court below completely failed to see that on 15/5/2008 the agreement was cancelled and the respondents had given the cheque (Ex P-2) to the appellants which was submitted by the appellant no. 1 in her account on 13/6/2008 and which was returned back with endorsement that the account has been closed on 25/6/2008 and there is no stigma from the bank that the aforesaid cheque is not proper. Infact the bank returned back the cheque on the ground that the account has been closed. Under these circumstance there is no question arise that the cheque is false and fabricated. Therefore the finding of the court below is perverse and against the provisions of law and liable to be set aside. He further submits that the learned Court below committed grave error by wrongly interpreting the evidence of PW 3 Chandrakishore Sahu though in paragraph 2 he specifically stated that on 18/8/2005 the agreement for sale of agricultural land had been executed and respondents received Rupees Twe Lakhs as advance amount and rest of the amount was to be given to them at the time of execution of the sale deed. In cross examination in paragraph 3 he has specifically denied that it is wrong that after deciding the deal the stamp paper was brought and the contents were recorded on the stamp paper thereafter. Under the these circumstances there is no question arise that the deed of agreement (Ex-P/1) is false and fabricated. Therefore the finding of the learned court below is illegal and bad in law and liable to be set aside. Learned counsel next submits that during pendency of this appeal, the respondent No.2 has died, therefore, he confined his prayer to the finding recorded by the learned trial court against the appellants regarding initiation of criminal proceedings only, therefore, the appeal be decided only for the finding of the trial court against the appellants. Learned counsel has placed his reliance upon the judgments rendered by the Supreme Court in the matter of Ratanlal Agrawal vs Sunil Sarawgi reported in (2014) SCC Online Chh 96, B. K. Gupta vs Damodar H. Bajaj and others, reported in (2001) 9 SCC 742 and in the matter of Santokh Singh vs Izhar Hussain and another, reported in (1973) 2 SCC 406.