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2026 DAILYLAW 16601 (HP)

Akshay Aggarwal v. Anil Gupta

2026-03-23

Rakesh Kainthla

body2026
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 30.4.2012, passed by learned Sessions Judge, District Sirmour, at Nahan, (learned Appellate Court), vide which the judgment of conviction dated 12.8.2011 and order of sentence dated 29.8.2011, passed by learned Judicial Magistrate, First Class Nahan, Sirmour, District at Nahan HP (learned Trial Court) were set-aside and the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant and the accused were known to each other. The accused demanded Rs.1.00 lac from the complainant on 2.8.2008. The complainant paid the amount, and the accused promised to repay it within four months. He issued a post-dated cheque of Rs.1.00 lac. He promised to return the amount and told the complainant that he could present the cheque in case of failure to repay the amount. The accused did not repay the amount, and the complainant presented the cheque, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant sent a notice to the accused asking him to repay the amount. The notice was duly served upon the accused, but the accused failed to repay the amount. Hence, the complaint was filed before the learned Trial Court for taking action as per law. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the Court, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined Pradeep Tomar (CW1) and himself (CW2) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he had friendly relations with the complainant. He admitted that the cheque pertained to his bank and it was dishonoured with an endorsement ‘insufficient funds’. 4. The complainant examined Pradeep Tomar (CW1) and himself (CW2) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he had friendly relations with the complainant. He admitted that the cheque pertained to his bank and it was dishonoured with an endorsement ‘insufficient funds’. He admitted that he had received the notice through UPC but denied the receipt of notice through registered post. He stated that he had issued a blank cheque as security. A false complaint was filed against him by misusing the cheque. He had taken only Rs.10,000/- from the complainant in the committee. He had returned Rs.5,000/- to the complainant. He examined Prem Chand Gupta (DW1) and Gurmeet Singh (DW2) to prove his defence. 6. Learned Trial Court held that the issuance of the cheque was not disputed, and a presumption arose that the cheque was issued for consideration to discharge the debt/liability. The cheque was dishonoured with an endorsement ‘insufficient funds’, and the accused failed to repay the amount despite receipt of the notice of demand. The plea taken by the accused that the complainant was running the committee and the accused had issued the cheque was not proved. Hence, the learned Trial Court convicted the accused and sentenced him to undergo simple imprisonment for three months and to pay a compensation of Rs.1,20,000/- to the complainant. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Sirmour, District at Nahan (learned Appellate Court). Learned Appellate Court held that the plea taken by the accused that he had issued a cheque as a member of the committee was highly probable. The complainant filled Rs.1.00 lac in the cheque and presented it before the bank. There was insufficient evidence regarding the payment of Rs.1.00 lac to the accused. The learned Trial Court had erred in convicting and sentencing the accused. Hence, the judgment and order passed by the learned Trial Court were set aside, and the accused was acquitted. 8. Being aggrieved by the judgment passed by the learned Appellate Court, the complainant has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The accused had failed to prove that the complainant had filled the cheque or that the complainant was running any committee. 8. Being aggrieved by the judgment passed by the learned Appellate Court, the complainant has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The accused had failed to prove that the complainant had filled the cheque or that the complainant was running any committee. Learned Appellate Court ignored the presumption attached to the cheque. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set-aside. 9. When the matter was listed for hearing, none appeared on behalf of the appellant. Earlier, the Court had also dismissed the appeal in default for non-appearance on 14.8.2012 and restored it on 27.6.2013. Since there was no representation on behalf of the appellant, hence none could be heard. 10. Mr Servedaman Rathore, learned counsel for respondent No.1/accused submitted that the learned Appellate Court had rightly dismissed the appeal. The plea taken by the accused that the complainant was running a committee and the accused had issued the cheque as security, was highly probable. The accused is not required to prove his defence beyond a reasonable doubt, and the learned Appellate Court had taken a reasonable view while dismissing the appeal. Hence, he prayed that the present appeal be dismissed. 11. Mr Ajit Sharma, learned Deputy Advocate General, for respondent No.2-State, submitted that the dispute is between the private parties and the State has nothing to say in the matter. Hence, he prayed that an appropriate order be passed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omits to consider the material evidence and takes a view that no reasonable person would have taken based on the evidence on record. It was observed: “11. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate, and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748, this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed: - “6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question.” 15. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 16. The complainant, Akshay Kumar, denied in his cross-examination that he was running a committee and taking the blank cheques from the members of the committee. He denied that the accused had handed over the blank cheque. He volunteered to say that the cheque was filled out by the accused himself. He had a record regarding the collection of Rs.1.00 lac, but he could not produce it before the Court. He did not have any receipts regarding the payment of the amount. No person was present at the time of the delivery of the cheque. 17. Prem Chand Gupta (DW1) stated that the complainant is running a committee. The accused was a member of the committee and had handed over the security cheque to the complainant. He admitted in his cross-examination that the accused is his son-in-law. He denied that he was making a false statement because of his relationship with the accused. 18. Gurmeet Singh (DW2) stated that the complainant was running a committee in Naya Bazar. He (the complainant) used to take blank cheques from the members of the committee as security. He (Gurmeet Singh) was also a member of the committee. The complainant had taken a blank cheque from the accused as security. He stated in his cross-examination that the cheque was handed over in the shop of the tailor. Some 3-4 persons were also present. He was not aware that the accused was to pay Rs.1.00 lac to the complainant. 19. The complainant had taken a blank cheque from the accused as security. He stated in his cross-examination that the cheque was handed over in the shop of the tailor. Some 3-4 persons were also present. He was not aware that the accused was to pay Rs.1.00 lac to the complainant. 19. Learned Trial Court discarded the statement of Prem Chand Gupta because he was the father-in-law of the accused. The relationship may put the Court on guard, but it cannot be a reason to reject the testimony of a witness[Baban Shankar Daphal v. State of Maharashtra, 2025 SCC OnLine SC 137]. His testimony that the complainant was running a committee was duly corroborated by the statement of Gurmeet Singh. The complainant denied this fact in the cross-examination, which shows that he is not a credible witness. He had no reason to deny this fact, and his denial makes it clear that he is not telling the complete truth. The defence witnesses consistently stated that the cheque was handed over to the complainant as security for the amount of Rs.10,000/-, which appears to be probable. 20. Therefore, the learned Appellate Court had taken a reasonable view, and no interference is required with the reasonable view of the learned Appellate Court, even if another view is possible. 21. No other point was urged. 22. In view of the above, the present appeal fails, and the same is dismissed. 23. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) respondent No.1/accused is directed to furnish bail bonds in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, respondent No.1/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 24. Records of the learned Courts below be sent back forthwith, along with a copy of this judgment.