BHUPENDRA J PATEL Vs. JANAK GOKULDAS ASHAR

JUDGEMENT

(1.) HEARD Mr.Rajiv Pandey the learned counsel for the applicant.

(2.) THIS is an application seeking leave to prefer appeal against the order of acquittal for the offence punishable under Section 138 of the Negotiable Instruments Act in criminal case no.208/SS/2005 and in criminal case no.1376/SS/2005. Both these applications may be disposed off by the common order as the facts are almost similar and parties are also the same.

(3.) IN both the cases, it was the contention of the accused respondent that he and his wife were the partners of the firm M/s. Ashar Engineers. The applicant was also partner in the said firm. The applicant and the respondent both were allowed to operate bank account of the firm. Misusing his authority the applicant had illegally transferred the amount of Rs.7,50,000/- from the firm's account to his individual account about which the respondent had made a complaint to the bank and after enquiry by the Banking Ombudsman, illegal transfer of the amount was restored to the firm. About that incident some complaints were filed by the respondent's wife. According to the respondent, the complainant had kidnapped himself and his family members and forced him to put signatures on blank cheques about which his uncle had lodged a report but it was treated as non-cognizable offence. The learned trial Court while acquitting the accused respondent noted the above circumstances, which were almost admitted by the applicant in the cross-examination. The learned trial Court also noted that signature of the respondent on the cheques were in black ink while all the other contents including name of the payee, amount, date, etc. were in different handwriting and not in the handwriting of the respondent. The learned trial Court also noted that even according to the admission of the applicant as soon as the respondent received the notice, he had taken the above pleas in reply. After taking into consideration the conduct of the applicant and all the circumstances, the learned trial Court found that the applicant had failed to prove that cheques were issued by the respondent in discharge of his liabilities.