Court No. - 82
Case :- APPLICATION U/S 378 No. - 10 of 2009 Applicant :- Hansmukhi Devi Opposite Party :- State of U.P. and Others Counsel for Applicant :- Awadhesh Prasad Pandey,R.S. Yadav Counsel for Opposite Party :- Govt. Advocate,Kartikeya Saran
Hon'ble Harsh Kumar,J.
Vakalatnama filed by Sri Rajarshi Gupta & Sri Man Mohan Mishra, Advocates on behalf of applicant, is taken on record.
Heard Sri Rajarshi Gupta, learned counsel for applicant, Sri Prateek Samadhiya, Advocate holding brief of Sri Kartikey Saran, learned counsel for opposite party no.2 & 3 and learned A.G.A. for State.
The instant appeal has been filed against impugned judgment and order of acquittal dated 26.03.2009 passed by Judicial Magistrate, Court No. 9, Jhansi in Complaint Case No. 2201 of 2008 (Ramesh Singh Vs. Raj Kumar Singh and others), under Section 138 of Negotiable Instrument Act with an application for leave to file appeal.
Learned counsel for applicant-appellant submits that the issuance of cheque has not been disputed by opposite party nos.2 and 3 and learned trial court has acted wrongly and illegally in placing the burden to rebut the presumption under Section 118 read with Section 138 of Negotiable Instrument Act on complainant; that the law provides a presumption in favour of complainant, which is required to be rebutted by accused and the complainant may not be expected to disprove the above presumption.
Per contra, learned counsel for opposite party nos. 2 & 3 and learned A.G.A. supported the impugned judgment and order and contended that there is no illegality or incorrectness in the impugned order and the application for leave to file an appeal is liable to be rejected.
Upon hearing parties counsel and perusal of record, I find that debatable question of fact and law is involved in this matter and since matter requires consideration, there is sufficient ground for granting leave to file.
The application for leave to file appeal is allowed accordingly.
Since the lower court record has been received, list in second week of February, 2020 for final hearing.
Order Date :- 18.12.2019 Shivangi