VEENA RANI CHHABRA Vs. MANJU ROHIDA

JUDGEMENT

(1.) BY way of the present appeal under Section 378 (1) Cr. P. C. r/w section 482 Cr. P. C. the appellant seeks setting aside of order dated 22. 9. 2005 passed by the court of Sh. Surinder S. Rathi, M. M. Karkardooma Courts, Delhi whereby the learned M. M. has acquitted the respondent/accused. Brief facts relevant for deciding the present appeal are that the appellant had filed a complaint case under Section 138 Negotiable Instrument Act based on the cheque No. 758164 dated 20. 3. 2003 for a sum of Rs. 2,30,000/- which was issued by the respondent towards discharge of its liability of loan amount. The said cheque was deposited by the appellant in her bank account but was returned dishonoured and thereafter legal notice of demand was sent by the appellant which was also replied by the respondent vide reply dated 18. 8. 2003. Since respondent had failed to comply with the said demand notice, therefore, the appellant had filed the complaint case under Section 138 N. I. Act against the respondent. The respondent was summoned in the said case and after taking into consideration the evidence led by the appellant and the statement of the respondent recorded under Section 313 Cr. p. c. the learned court of Sh. S. S. RAthi, Karkardooma Courts, Delhi dismissed the complaint case of the appellant by the impugned order dated 22. 9. 2005. Feeling aggrieved by the said order the appellant has preferred the present appeal. Counsel appearing for the appellant submits that the trial court had failed to consider the reply dated 18. 8. 2003 wherein the respondent had duly admitted the loan of Rs. 1,35,000/- and ignoring the said admission on the part of the respondent, the concerned Magistrate has dismissed the complaint of the appellant. Counsel for the appellant further submits that the presumption should be drawn in favour of the holder of the cheque unless such a presumption is effectively rebutted by the respondent which as per the counsel for the appellant respondent failed to rebut in the facts of the present case. Counsel for the appellant further submits that the respondent nowhere disputed the handing over the said cheque in question which fact alone was sufficient enough to allow the said complaint case filed by the appellant. I have heard counsel for the appellant and counsel for the respondent and perused the records. It is a settled legal position that in criminal trials the guilt of the accused has to be proved beyond any shadow of doubt unlike the civil matters where the case can be decided on probabilities. The criminal trial thus stands on a entirely different pedestal than of a civil case. Any suspicious circumstance arising in any criminal trial will certainly give advantage to the accused. In the present case, the appellant herself has given two versions -- one at the time of pre-summoning evidence and the then at the post-notice stage. Earlier the stand of the appellant was that the cheque was issued by the respondent against advancement of some loan by the appellant and in the post-notice evidence the stand taken for the issuance of the said cheque was on account of some outstanding amount in the Chit fund which was being operated upon by the appellant. This inconsistency and contradiction on the part of the appellant has rightly been considered as fatal by the trial court and the trial court has correctly observed that the complainant is supposed to stand on her own legs than merely banking upon the admission made by the respondent in her reply dated 18. 8. 2003. The admission on the part of the respondent in her reply may be of some benefit to the appellant in a civil case but the same cannot help the appellant so far as criminal case is concerned. The appellant thus failed to establish the issuance of the said cheque towards a legally enforceable debt and therefore, I do not find any infirmity in the order passed by the learned Metropolitan Magistrate. There is no merit in the present appeal, the same is hereby dismissed.