Case Note & Summary
The appellant, Manojkumar Jivanlal Prajapati, filed a criminal appeal under Section 378 of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 07.02.2009 passed by the learned 10th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, in Criminal Case No.944 of 2003. The trial court had acquitted the accused, Uttambhai Somabhai Patel, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The brief facts are that the complainant and the accused had friendly relations, and the accused took a loan of Rs.4,00,000/- from the complainant on different dates. The accused failed to repay the amount despite repeated reminders and issued a cheque which was dishonoured. The complainant filed a complaint under Section 138 NI Act. During the trial, the complainant examined himself and his evidence-in-chief was recorded. However, the complainant did not appear for cross-examination on several dates. The trial court, by the impugned judgment, acquitted the accused solely on the ground that the complainant failed to appear for cross-examination, without considering the other evidence on record. The High Court observed that the trial court had erred in not considering the evidence-in-chief of the complainant and the documents on record. The court held that the acquittal was not justified and the matter required reconsideration. The High Court allowed the appeal, set aside the impugned judgment, and remanded the matter back to the trial court for fresh decision after giving an opportunity to both parties to lead evidence. The trial court was directed to decide the case afresh within six months from the date of receipt of the order.
Headnote
A) Criminal Law - Negotiable Instruments Act - Dishonour of Cheque - Section 138 NI Act - Acquittal Appeal - The appellant-complainant challenged acquittal under Section 378 CrPC. The trial court acquitted the accused solely because the complainant failed to appear for cross-examination. The High Court held that the trial court erred in not considering the complainant's evidence-in-chief and other documents. The matter was remanded for fresh decision after giving opportunity to both parties. (Paras 1-10) B) Criminal Procedure - Appeal against Acquittal - Section 378 CrPC - Duty of Appellate Court - The appellate court must re-appreciate evidence and interfere if the trial court's view is perverse or unreasonable. Here, the trial court's order was set aside as it failed to consider the evidence on record. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in acquitting the accused solely on the ground that the complainant did not appear for cross-examination, without considering the other evidence on record.
Final Decision
Appeal allowed. Impugned judgment and order of acquittal dated 07.02.2009 passed by the learned 10th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, in Criminal Case No.944 of 2003 is set aside. The matter is remanded back to the trial court for fresh decision after giving an opportunity to both parties to lead evidence. The trial court is directed to decide the case afresh within six months from the date of receipt of the order.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 378 Code of Criminal Procedure
- 1973
- acquittal appeal
- non-examination of complainant
- presumption under Section 139 NI Act
- duty of appellate court
