- (1.) Respondent had faced trial qua commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short) in a complaint moved by the applicant. Trial Court vide judgment dated 2.9.2013 ordered the acquittal of the respondent. Hence, the present application under Section 378(4) of the Code of Criminal Procedure, 1973 praying for leave to appeal by the complainant-applicant.
(2.) Learned counsel for the applicant has submitted that the Trial Court had erred in ordering the acquittal of the respondent, although, applicant had been successful in proving its case. Admittedly, the cheques in question had been duly signed by the respondent.
(3.) In the present case, applicant had filed complaint under Section 138 of the Act against the respondent qua dishonour of cheques in question. The Trial Court while ordering the acquittal of the respondent, has held as under:- "It is not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. The criminal court while appreciating the evidence brought on record may have to weigh the entire pros and cons of the matter which include the circumstances which have been brought on record by the parties. 15. To rebut the aforesaid presumption, learned counsel for accused has drawn my attention towards Form-38, Ex. C11, the document produced by the complainant in her evidence. From perusal of document Ex. C11, available on the file, it is clear that it is a blank document. As per case of the accused, the complainant had not sent any goods to him despite issuance of Form- 38 ad two post dated cheques by him. Had the complainant sent the goods to the accused and the accused received the goods, Form-38 should be deposited in the office of Sales Tax. On the other hand, the complainant has failed to produce any document showing that she had sent goods to the accused. For the sake of arguments, even, if it is presumed that the complainant had sent goods to the accused, it cannot be held that the complainant had sent goods to the accused without Form- 38 which is mandatory as per rule 54 of The U.P. Value Added Tax Rules according to which "the owner, driver or any other person-in-charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or the vessel .......carry with them Form XXXVIII (38) and cash memo, bill, invoice or challan." But in the present case, the complainant herself produced blank form-38 as Ex. C11, meaning thereby, the complainant had not sent the goods to the accused. There is no mention in the complaint that the complainant sent goods to the accused from Deoband (Saharanpur-UP). However, during crossexamination CW1 Farida made improvements by saying that the goods were sent to the accused from Deoband Branch. Further she admitted that she is not having any firm at Deoband. Her cross-examination was deferred for want of bill book for which she assured that she would produce the same on next date. However, again she failed to produce any bill rather said that the bill book had been stolen. Moreover, she has failed to produce receipt of weighing machine, the only document which she could produce to prove the purchase of goods. So, in this way, the complainant has failed to prove the fact that she ever sent goods to the accused. Ex. C11 itself makes the case of complainant highly doubtful. So, the complainant has not been able to prove that the accused had issued the cheques in question in her favour in discharge of his legal enforceable debt or liability. Thus, the accused has successfully rebutted the presumption that holder of the cheques had not received it for discharge of any debt or liability. Moreover, it is settled law that mere signing a cheque do not amount to execution of cheque and the complainant must prove its execution.";