Uttarakhand High Court
Jitendra Agarwal vs Gaurav Sharma on 24 June, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
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Judgment reserved on: 10.06.2025
Judgment delivered on: 24.06.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.246 of 2014
Jitendra Agarwal .....Appellant
Vs.
Gaurav Sharma .....Respondent
Presence:
Mr. Prabhakar Narayan, learned counsel for
appellant.
Mr. Pramod Belwal, learned counsel for respondent.
Hon’ble Pankaj Purohit, J. (Per)
This is an appeal preferred by the appellant
assailing the judgment and order dated 23.07.2014
passed by learned Special Judicial Magistrate, Rishikesh,
District Dehradun, in C.G. No.745 of 2014 Jitendra
Agarwal Vs. Gaurav Sharma, whereby, the said Court
had acquitted the respondent for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter to be referred to as ‘the Act’).
2. The facts in brief are that the respondent was
well known to appellant and was used to lend money
from time to time from the appellant. On 03.11.2008, the
respondent had borrowed Rs.2,00,000/- from the
appellant in cash for two months and at the same time
gave him a pre-filled cheque with the date 03.01.2009
marked on it after two months. The respondent signed it
in his presence, but, the said cheque was dishonored due
to payment stoppage by the Drawer, when the appellant
deposited the said cheque in his PNB account, thereafter,
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the appellant on 14.01.2009 sent a legal notice through
registered post, which was duly received by the
respondent on 17.01.2009. When the respondent did not
return the said amount within prescribed time, then the
appellant filed a criminal complaint against the
respondent under Section 138 of the Act before the
learned Special Judicial Magistrate, Rishikesh, which
was registered as Criminal Complaint Case (C.G.) No.745
of 2009 Jitendra Agarwal Vs. Gaurav Sharma.
3. During trial, as many as two witnesses were
produced by the prosecution in order to prove its case.
Thereafter, the statement of respondent/accused person
was recorded under Section 313 of the Cr.P.C., in which,
he denied the appellant’s story. The Trial Court at the
end of trial has recorded the findings of acquittal. Hence,
this Appeal.
4. Learned counsel for the appellant submits that
the respondent used to take loan from the appellant and
the appellant in ordinary course makes entries of the
loan amount in a diary maintained by the appellant,
perusal of which makes it clear that signatures of the
respondent in diary was same as the signature made on
the dishonored cheque. He further submits that the two
witnesses who were present at the time of advancing the
money to the respondent were never called by the learned
Trial Court.
5. He also submits that the learned Trial Court
had erred in not appreciating the fact that the
respondent under planned conspiracy made complaint to
the bank as well as to the P.S. Rishikesh regarding the
loss of his cheque book, only a day prior of the
presentation of cheque before the bank by the appellant,
which creates doubt over the conduct of respondent and
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learned Trial Court relied on such false and baseless
story of the respondent and acquitted him from the
charges under Section 138 of the Act.
6. Learned counsel for the appellant further
submits that this is a fit case for reversal of acquittal, as
the judgment is based on a misreading/omission to
consider the material evidence on record. To substantiate
his argument, he placed his reliance upon the judgment
rendered by Hon’ble Supreme Court in the case of
Constable 907 Surendra Singh and Anr. Vs. State of
Uttarakhand rendered in Criminal Appeal No.355 of
2013, especially, on para 12, which is quoted below:-
“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.”
7. On the other hand, learned counsel for the
respondent submits that the respondent neither knew
the appellant nor did take money from the appellant. He
also submits that the respondent did not give the cheque
in-question to the appellant; according to him, his
cheque book was misplaced and there were 20 leafs i.e.
Cheque Nos.960801-20 in it. These cheques were of his
account and he had signed on it. He himself on
30.12.2008 request the Bank to stop the payment of said
cheques and on 01.01.2009 reported the same at P.S.
Rishikesh. He also submits that one witness namely
Prateek Kaliya has been examined before the learned
Trial Court, but the evidence of the said witness was
disbelieved by the learned Trial Court.
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8. Learned counsel for the respondent placed a
reliance upon Para 3 of the judgment rendered by
Hon’ble Supreme Court in the case of Ghurey Lal Vs.
State of U.P. rendered in Criminal Appeal No.155 of
2006 dated 30.07.2008 reported in (2008) 10 SCC 450,
which is extracted as under:-
“3. We have endeavoured to set out the guidelines for
the appellate courts in dealing with appeals against
acquittal. An overriding theme emanates from the law
on appeals against acquittals. The appellate court is
given wide powers to review the evidence to come to
its own conclusions. But this power must be exercised
with great care and caution. In order to ensure that
the innocents are not punished, the appellate court
should attach due weight to the lower court’s acquittal
because the presumption of innocence is further
strengthened by the acquittal. The appellate court
should, therefore, reverse an acquittal only when it
has “very substantial and compelling reasons.”
9. Learned counsel for the respondent contends
that appellate court should be slow in interfering with the
judgments of acquittal unless there is perversity. He
further submits that the case law cited by the appellant
is rather helpful to the respondent-accused.
10. Heard learned counsel for the parties and
perused the entire material available on record. The
finding recorded by the learned trial court is quite
convincing and needs no interference, as from a bare
reading of the material available on record, it is clear that
the facts mentioned even taken on their face value won’t
make out a prima-facie case against the respondent, as
the appellant was doing an ordinary private job i.e.
making shutters, where, such a big amount of
Rs.2,00,000/- came from, which he had given to the
respondent, this creates doubt in the mind of learned
Trial Court and since the appellant did not prove that he
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had given Rs.2,00,000/- to the respondent, learned Trial
Court had rightly acquitted the respondent.
11. There is yet another aspect of the matter. The
respondent has been acquitted. In appeal against
acquittal, it is held by Hon’ble Apex Court in catena of
judgments that the Courts should be slow in interfering
in the judgments of acquittal as the innocence of the
accused is further reinforced by his acquittal. Unless and
until there is perversity in the judgment of acquittal, the
same should not be interfered with.
12. It is trite law that that while hearing the appeal
against acquittal, the power of reviewing evidence must
be exercised with great care and caution. In order to
ensure that the innocents are not punished, the appellate
court should attach due weight to the lower court’s
acquittal because the presumption of the innocence is
further strengthened by the acquittal. The appellate court
should reverse an acquittal only when there are “very
substantial and compelling reasons”. I am fortified in my
view by the judgment of the Hon’ble Apex Court in case of
Ghurey Lal (Supra).
13. The trial court has passed an elaborate
judgment for recording the finding of acquittal and this
Court does not want to reiterate the same for the sake of
repetition. Learned counsel for the appellant could not
argue any ground so as to interfere with the well
reasoned judgment passed by the trial court.
14. For the aforesaid reasons and following the
dictum of the Hon’ble Apex Court, I am also of the
considered view that no ground for interference, at all, is
made out in this matter, as there is no illegality and
perversity in the impugned judgment and order.
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15. The appeal is bereft of merit and the same is
accordingly dismissed.
16. Let the T.C.R. be immediately sent back to the
trial court for consignment.
(Pankaj Purohit, J.)
24.06.2025
PN