@JUDGMENTTAG-ORDER
Mr. S.P. Garg, J. - Challenge in this appeal is a judgment dated 07.05.2011 of learned Addl. Sessions Judge in Crl.A.No.04/2011 by which
orders on conviction and sentence dated 29.01.2011 and 04.02.2011 respectively of learned Metropolitan Magistrate in the proceedings instituted
under Section 138 Negotiable Instruments Act were set aside. The appeal is contested by the respondent.
2. I have examined the file. The appellant in the proceedings under Section 138 Negotiable Instruments Act examined himself as CW-1; whereas
the respondent appeared as DW-1 besides examining DW-2 (Ramesh Chandra) and DW-3 (Ashok Kumar). The Trial Court by a judgment
dated 29.01.2011 held the respondent guilty for committing offence under Section 138 Negotiable Instruments Act. Aggrieved by the said orders,
the respondent went in appeal and it resulted in setting aside of the orders on conviction and sentence. Being dissatisfied, the appellant has come in
appeal.
3. In the complaint under Section 138 Negotiable Instruments Act, the appellant claimed that in September, 2003 the respondent and his associate
Ramesh Chandra (since acquitted) had approached him for acquiring certain gold ornaments worth around Rs. 4 lacs. The respondent had issued
two post-dated cheques No.408915 and 408916 dated 08.10.2003 as ''consideration'' for the ornaments given by him (the complainant). A
receipt (Ex.CW-1/3) was executed. On presentation, the cheques were dishonoured. The respondent failed to make the payment despite service
of legal notice.
4. In the complaint, the complainant, however, did not disclose any specific date as to when the respondent had approached him for acquiring gold
ornaments worth Rs. 4 lacs; what were its specifications. It was not disclosed as to what was the total weight of the gold ornaments and what was
its valuation. It was also not clarified as to on what particular date the gold ornaments were handed over by the appellant to the respondent. In the
complaint, the complainant also did not reveal if any time the respondent had pledged ornaments with him and if so, what was its weight and
valuation and whether these were ever returned, and if so, when and for what consideration.
5. During trial, the complainant (CW-1) while reiterating his version in the examination-in-chief, admitted in the cross-examination that the
respondent had pledged some gold ornaments worth Rs. 5 lacs at that time, the value of which was around Rs. 12 lacs at present. The
complainant, however, did not claim as to when the gold ornaments so pledged were returned to the respondent. In the further cross-examination,
the complainant admitted that, in lieu of the ornaments, he had paid Rs. 4 lacs to the respondent. He further stated that no writing was made
regarding the payment made by him to the respondent. Apparently, the appellant has not presented true facts. It was not claimed that cheques in
question were issued by the respondent in the discharge of ''debt'' or ''other liability''.
6. Admittedly, receipt (Ex.CW-1/3) was executed between the parties. However, there is controversy as to the ''date'' when it was so executed;
the word ""Liya or Diya"" mentioned in it are also disputed. The complainant did not examine any attesting witness to corroborate his version.
Admittedly, the revenue stamp was affixed on the receipt subsequently; there are certain alterations in receipt (Ex.CW-1/3). It further records that
the cheques in question were given to the complainant as security (""Bator Amanat Diye""). The complainant alleged that these words were
incorporated subsequently by DW-2 (Ramesh Chandra) in connivance of the respondent. This receipt records that ornaments worth Rs. 2.30 lacs
and Rs. 1.70 lac were given. It is, however, unclear whether the gold ornaments were given by the complainant to the respondent or vice versa. In
the complaint, the complainant did not disclose if ornaments worth Rs. 2.30 lacs and Rs. 1.70 lacs were given by him to the respondent.
7. The respondent examined DW-2 (Ramesh Chandra) and DW-3 (Ashok Kumar) attesting witnesses to the receipt (Ex.CW-1/3). They have
supported the respondent''s version. It was specifically denied that the words in Ex.CW-1/3 were manipulated or fraudulently inserted. At no
stage, the complainant lodged any complaint for fabrication of the receipt (Ex.CWCrl. 1/3) though it continued to be in his possession. Contents of
the receipt can''t be permitted to be denied under Sections 91 and 92 of the Indian Evidence Act.
8. It is amply clear from the evidence referred above that at the time of issuance of the cheques there was no outstanding liability on the
respondent''s part. The complainant has not established if any jewellery purportedly pledged by the respondent with him was ever returned to him.
The appellant cannot be permitted to enjoy the alleged pledged jewellery as well as to ask for cheque amount given as security/entrustment.
9. In the light of above discussion, impugned judgment suffers from no illegality.
10. The appeal lacks in merits and is dismissed.
11. Trial Court record be sent back forthwith with the copy of the order.