ADARSH STATIONERY Vs. SHRI MAHAVEER AGENCY

JUDGEMENT

(1.) Shri Sanjay Bahirani, learned counsel for the applicant. Shri A.K. Agarwal, learned counsel for the respondent. Heard. This application under section 378(4) of the Criminal Procedure Code, 1973 has been filed seeking leave to appeal against the judgment dated 15.06.2016 passed in Criminal Case No. 63/2011 by the Court of Judicial Magistrate First Class, Gwalior, wherein the complaint filed by the present applicant has been dismissed on the ground that the complainant had failed to prove that the Cheque in question, which was dishonoured, was towards any security but was given for discharge of some debt.

(2.) Learned counsel for the applicant submits that the trial Court has erred in dismissing the complaint by wrongly appreciating the statement and the evidence on record and by wrongly recording a finding that the applicant made a statement that he received the cheque for security purpose, whereas in paragraphs 17 and 18 of the statement of the applicant, he had specifically denied that the accused had given cheque for security purpose. It is also submitted that merely because the applicant had submitted the cashbook, a wrong presumption has been drawn against the applicant that the cheques were for discharge of any legal debt but were issued towards security. It is also submitted that once the applicant had succeeded in prima facie proving his case under the provisions of section 138 of the Negotiable Instruments Act (hereinafter for short referred to as "Act"), then the trial Court should have dismissed the complaint. In support of his case, the learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Jharkhand High Court in the case of M/s. Bharat Sales Corporation Parsudh v. State of Jharkhand as reported in 2004 Cri. L.J. 4569 , wherein the Hon'ble High Court has held that it was clear from the judgment that the Court had applied its judicial mind on the documentary as well as oral evidence produced by the complainant and without assigning any reason discarded the said evidence overlooking the presumption as to the guilt of the accused person and therefore remanded the matter back for reconsideration on the basis of the evidence on record. Learned counsel for the applicant has also placed reliance on the judgment of Hon'ble Calcutta High Court in the case of S.N. Dabholkar v. Duroplus India Pvt. Ltd. and Another as reported in 2007 (2) Crimes 469 (Cal.) , wherein it has been held that the defence, which was raised before the Court that cheques were given postdated was since taken in reply to the legal notice, conviction was liable to be interfered with.

(3.) On the other hand, the learned counsel for the respondent has placed reliance on the decision of this Court in the case of Harbanslal v. Shyamsunder as reported in 2014 (4) MPLJ 37 , wherein this Court has upheld the acquittal and has held that there was no evidence to show that the alleged cheque was issued for consideration. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Reverend Mother Marykutty v. Reni C. Kottaram and Another as reported in 2013 (2) MPLJ 163 wherein the Hon'ble Supreme Court has held that the High Court failed to discharge its onerous responsibility of considering the material evidence on record and unduly interfered with the order of acquittal passed by the trial Judge without proper reasoning and and has set aside the conviction and sentence imposed by the High Court in the impugned judgment.