TMI Blog2017 (5) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 652 / 2014 - - - Dated:- 15-5-2017 - Vijay Bishnoi, J. For Appellant : Mr. L.D. Khatri For Respondent : Mr. O.P. Rathi, PP Mr. P.D. Bohra JUDGMENT This criminal appeal has been preferred on behalf of the appellant being aggrieved with the judgment dated 6.8.2014 passed by the Distt. Sessions Judge, Jaisalmer (for short the appellate court ) in Criminal Appeal No.18/2013, whereby the appellate court has accepted the appeal filed by the respondent No.2 and set aside the judgment dated 8.5.2013 passed by the Judicial Magistrate, Jaisalmer (for short the trial court ) in Criminal Regular Case No.16/2011. The trial court vide judgment dated 8.5.2013 has convicted the respondent No.2 for the offence punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 for the offence punishable under Section 138 of the N.I. Act and framed charges for the aforesaid offence against him. The respondent No.2 has denied the charges levelled against him and claimed trial. During the course of trial, the appellant has filed an affidavit in support of the complaint and has got examined himself as PW-1. He has also got exhibited five documents. The statement of the respondent No.2 was recorded under Section 313 Cr.P.C. and two witnesses namely Mohan Singh (DW-1) and Chagan Lal (DW-2) have been examined in defence. Two documents were produced by the respondent No.2 in defence. The trial court after hearing learned counsel for the parties and after taking into consideration the evidence available on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .I. Act against the respondent No.2 by producing cogent and reliable evidence, however, the appellate court on the basis of surmises and conjectures has set aside the said judgment and disbelieved the evidence produced by the appellant. It is argued that the respondent No.2 took amount of ₹ 40,000/- from the appellant on 5.6.2010 and has given him the cheque in question on 8.6.2010 for realization of the said loan amount. The appellant has presented the said cheque in the concerned bank, however, the same was returned by the bank with a remark insufficient fund , then, the appellant has informed the respondent No.2 about the same and on asking has again presented the cheque in the concerned bank on 23.7.2010, but again the same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the appellate court has not committed any illegality in accepting the appeal filed by the respondent No.2 and in setting aside the judgment dated 8.5.2013 passed by the trial court. Heard learned counsel for the parties, perused the impugned judgment and carefully scrutinized the record. The case of the appellant before the trial court was to the effect that he has advanced a loan of ₹ 40,000/- to the respondent No.2. It is noticed that neither in the complaint nor in the statement before the court, the appellant has disclosed the date, on which, he has advanced amount of ₹ 40,000/- to the respondent No.2. Though, he has produced some documents, diary etc. to prove that he has advanced loan of ₹ 40,000/- to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her case of the respondent No.2 before the trial court was that he has failed to deposit the installments of ₹ 5000/- in seven to eight months, then, the appellant has called and asked him to pay the due amount and at that time, he along with Mohan Singh (DW-1) and Chagan Lal (DW-2) had approached the appellant and at that time, it was decided that the respondent No.2 will pay the remaining due amount in two installments of ₹ 20,000/- each to the appellant and for that he has handed over a blank cheque of ₹ 40,000/- to him, but later on, the respondent No.2 has paid the due amount to the appellant in cash, however, on his demand, the blank cheque was not returned to him by the appellant. Mohan Singh (DW-1) and Chagan La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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