BASHIR AHMAD TELI Vs. MST HALEEMA

JUDGEMENT

(1.) By the medium of this petition, the petitioner has sought the indulgence of this Court in setting aside the judgment dated 23.07.2015, passed by the learned Judicial Magistrate, Pampore, in complaint titled Haleema v. Bashir Ahmad Teli & Another and the judgment dated 21.12.2015, passed by the learned Additional Sessions Judge, Pulwama in file No. 01/Cr. Appeal.

(2.) Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts and the grounds in which the petition was filed. It has been pleaded in the petition that the respondent herein has filed a criminal complaint titled Haleema v. Bashir Ahmad Teeli, for the commission of offences punishable under Section 138 of the Negotiable Instruments Act, against the petitioner, before the Court of learned Judicial Magistrate, 1st Class, Pampore, regarding the dishonor of cheque. The learned Judicial Magistrate, in terms of judgment dated 23.07.2015, has imposed fine of Rs. 5000/- upon the appellant and the appellant was also directed to pay compensation equivalent to cheque amount along with 10.25% interest per annum till realization of amount. The petitioner preferred an appeal before the Additional Sessions Judge, Pulwama, but the same was dismissed in absence of petitioner and his counsel. It is further submitted that the 1st appellate Court had committed an error which is apparent from the bare perusal of order impugned as the consideration of the appeal on merits at the stage of final hearing shall not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of record of the case. It is also contended that from the perusal of the record reveals that the 1st appellate Court had virtually failed to return finding on the averment put forth by the appellant in the memo of appeal and all the assertions raised therein remained unaddressed as appellate Court failed to return finding on the issue raised. The trial Court/1st appellate Court had pronounced the judgment on the basis of statement of accused recorded in terms of 242 and 342 Cr. PC and had in a way shifted the burden of proof as envisaged under law of Evidence which is contrary to law. It is further submitted that the alleged dishonoured cheque was not available in the record of the case and its existence was not proved during the trial besides the respondent failed to prove the procurement of memo by presentation of cheque furthermore the receipt and issuance of notice as required under law was not proved by cogent evidence as the respondent deposed that she had never instructed any one to serve notice upon accused and the same is evident from the perusal of her statement. The petitioner had preferred the instant appeal against the judgment and order of dismissal, the same deserves to the set aside.

(3.) Heard learned counsel for the parties and perused the material on record