Court No. - 42
Case :- CRIMINAL APPEAL No. - 4105 of 2003 Appellant :- Lokesh Kumar Gupta Respondent :- State Of U.P. & Another Counsel for Appellant :- Pankaj Bharti Counsel for Respondent :- A.G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Pankaj Bharti, learned counsel for the appellant as well as learned A.G.A. for the State and perused the record of this appeal.
This criminal appeal was preferred against judgement and order of acquittal dated 3rd June, 2000 passed by III Additional Sessions Judge, Muzaffar Nagar in Criminal Appeal No.105 of 1998, Bhudei Sharma Vs. Lokesh Kumar Gupta and others, whereby the respondent no.2- Bhudei Sharma- was acquitted for offence under Section 138 of the Negotiable Instrument Act.
It is relevant to mention that office report dated 20.08.2018, which reflects that in compliance of the order passed by this Court dated 30.05.2018, bailable- warrant issued by this Court has been executed upon appellant- Lokesh Kumar Gupta- and now he has been released on bail.
However, now the appellant- Lokesh Kumar Gupta- is represented through counsel- Sri Pankaj Bharti.
Learned counsel for the appellant submits that in this case actual address of respondent no.2- Bhudei Sharma- is not traceable, therefore, appellant- Lokesh Kumar Gupta- does not want to press this appeal.
However, learned A.G.A. submits that in this case lower court record is available and the leave to appeal was granted, vide order of this dated 14.08.2003, therefore, at this juncture, this appeal should be heard on its merit and disposed of under the facts and circumstances of the case.
Facts relevant for adjudication of this appeal appear to be that the complaint was filed by the appellant- Lokesh Kumar Gupta- before the court of IInd Additional Judicial Magistrate, Muzaffar Nagar in Case No.281/9 of 1997 (Lokesh Kumar Gupta vs. Bhudei Sharma) for offence under Section 138 of the N.I. Act, Police Station- Civil Lines, District- Muzaffar Nagar, wherein, it was claimed, interalia, that the complainant is running a company in the name and style of L.K. Gupta and Company 203/67 First Floor, Town Hall Road, Muzaffar Nagar, which deals in Share/Debentures and Stock Dealer Sub- Broker business. Appellant is the sole proprietor of the company. Respondent no.2- Bhudei Sharma- is also proprietor of D. Sharma & Company U.P.
59 Antaricha Bhawan 22 K.G. Marg, New Delhi. Both the aforesaid companies interacted in between dealing with share/debentures business and in continuation of the business and interaction between the company, some debit balance was required to be paid/compensated by respondent- Bhudei Sharma. Therefore, she (Bhudei Sharma) gave a cheque worth Rs.82,150/- being Cheque No.447622 of State Bank of Mysore, New Delhi Branch dated 24.07.1976 to the complainant- appellant. It was claimed that this cheque was dishonestly given by respondent- Bhudei Sharma- with intention to cheat to the complainant- Lokesh Kumar Gupta. When this cheque was produced for payment before the aforesaid Bank, it was dishonoured for 'insufficient amount', which information was received by the aforesaid complainant on 3.8.1996. The appellant contracted to the respondent- Bhudei Sharma. She did not exceed to the demand of complainant, therefore, notice through counsel was given to her and she was required to make payment of Rs.82,150/- within 15 days vide notice dated 8.8.1996. After expiry of the 15 days, when the money was not paid, then complaint was filed, which was registered and statement of the complainant was recorded under Section 200 Cr.P.C. Respondent- Bhudei Sharma- discarded the relevant facts, whereby the business transaction was gone into by the appellant with the respondent and the cheque was dishonoured. Thus, claimed Rs.82,150/-.
P.W.2 Sunil Kumar Gupta was produced, who was Accountant of complainant's company and he also supported the contents of the complainant.
Statement of the accused- respondent was also recorded, wherein, she claimed that she has been falsely implicated in this case by way of producing manipulated documents. No evidence whatsoever was led by the respondent.
The court below- II Additional Chief Judicial Magistrate, Muzaffar Nagar- after considering the merit of the case found the case proved and consistent, thus, convicted respondent-
Bhudei Sharma- for offence under Section 138 Negotiable Instrument Act and sentenced to six months simple imprisonment and fine of Rs.85,000/-.
Feeling aggrieved by the same, respondent- Bhudei Sharma- presented appeal before the IIIrd Additional Sessions Judge, Muzaffar Nagar, which was numbered as Criminal Appeal No.105 of 1998 (Bhudei Sharma vs. Lokesh Kumar Gupta and others). Both the parties were heard and after considering various aspects of the case and particularly the fact that the signature of Bhudei Sharma was not properly verified to have been endorsed on the cheque in question and in the absence of such corroborating testimony, the veracity of the cheque drawn cannot be conclusively decided. Similarly irregularities in papers was noticed by the lower appellate court and it was concluded that under circumstances there was no occasion for the accused to have issued any cheque for payment to the complainant, thus, set aside the judgement and order of the trial court dated 23.11.1998 passed by IInd Additional Chief Judicial Magistrate, Muzaffar Nagar.
Consequently, this appeal.
Learned counsel for the appellant submitted that in this case the conclusion drawn by the lower appellate court is not based on material on record, whereas the findings recorded by the court at first instance under circumstances is consistent and justified and the conviction recorded by the trial court was wrongly interfered by the Lower Appellate Court.
Also heard the learned A.G.A. on the merit of the case.
However, in so far as the various conclusions drawn by the lower appellate court are concerned, obviously it cannot be said that the findings of the lower appellate court to the extent that the relevant papers- say- Exhibit Ka-1 to Exhibit Ka-8 were not property proved by the complainant before the trial court, requires no interference but the finding of acquittal is liable to be sustained for the specific reason that service of notice sent to the accused by the complainant subsequently to the dishonour of the cheque was not properly proved. Such vital aspects of the case was not proved satisfactorily. Therefore, plea of commission of offence under Section 138 N.I. Act cannot be sustained.
Consequently, the judgement and order of acquittal passed by the lower appellate court vide its judgement and order dated 3rd June, 2000 passed in Criminal Appeal No.105 of 1998 passed by the III Additional Sessions Judge, Muzaffar Nagar is liable to be sustained. Consequently, this appeal lacks merit and the same is hereby dismissed.
Accordingly, this appeal is dismissed.
Order Date :- 28.8.2018 Raj