Kuldip Tyagi v. Abhay Kumar Mishra

1. These criminal leave petitions arise out of similar orders passed by the court of the Metropolitan Magistrate on 03.07.2015 and 01.08.2015 on similarly placed complaint cases presented by the respective petitioners they being criminal complaint nos.120/6/13, 1190/6/14, 1203/6/14, 119/6/13 and 63/6/13, each alleging offence under Section 138 of Negotiable Instruments Act, 1881, respecting different cheques.

2. The respondent in criminal leave petition 684/2015, namely Hira Prasad, is the father of the respondent in the other four criminal leave petitions. Each of the said two persons, while contesting the criminal cases in which they had been summoned took similar defence plea, it being loss on account of theft of the cheque book containing the cheque leaves in question duly signed, Hira Prasad (respondent in Crl. Leave Petition 684/2015) having claimed such loss in 2006 while Mr. Abhay Kumar Mishra (respondent in other four cases) having claimed such loss in 2007 in identical fact situation. Each of these respondents led evidence in defence, inter alia, to show that the loss by way of thefts of the cheque books containing the concerned cheque leaves have been not only reported to the police but also to the concerned bank. In the case of Abhay Kumar Mishra, he had also followed it up with a complaint in the court of the Metropolitan Magistrate, it resulting in the first information report (FIR) no.1/12 having been registered in police station Dabri pursuant to the directions of a Metropolitan Magistrate under Section 156(3) Cr. PC. Hira Prasad did not get any formal FIR registered.

3. Each of these respondents entered into the witness box in their own defence under Section 315 Cr. PC to affirm on oath the facts concerning the theft. Copies of the documents in the nature of report to the bank about the loss were submitted in the course of such evidence. But, no formal proof about its receipt by the bank was adduced at the trial by calling any official witness from the concerned bank.

4. The learned trial Magistrate dismissed the complaints acquitting the respondents. It is the said result based on identical reasoning in the five judgments, which is questioned through the petitions whereby leave is sought to file criminal appeals under Section 378(4) Cr. PC.

5. During the course of arguments, question arose as to the formal proof of bank having been informed about the loss on account of theft of the cheque leaves. The learned counsel for the respondent, on instructions, submitted that the respondent would need and prays for opportunity to adduce further evidence. He thus, fairly conceded that without prejudice to his rights and defences, leave may be granted in these cases and the criminal appeals be allowed and the judgments of the trial court may be vacated relegating the parties to the stage of defence evidence.

6. Thus, leave is granted. The criminal appeals shall be registered. The pending application being Crl. M.A. 14757/2015 is disposed of. Crl. A. ____________( to be numbered), Crl. A. ____________( to be numbered), Crl. A. ____________( to be numbered), Crl. A. ____________( to be numbered) and Crl. A. ____________( to be numbered)

7. In view of the above submissions, the appeals are allowed. The impugned judgments are set aside. The criminal complaint cases from which these matters arise shall stand restored on the file of the concerned Metropolitan Magistrate who shall give further opportunity to the respondents (accused) to lead further evidence in defence, particularly by calling the necessary records of the concerned bank to prove the instructions about stopping payment of the cheques on the ground that the cheque books had been lost on account of theft. If the respondents so desire, they may adduce further evidence, if any.

8. During the course of hearing, a request was also made on behalf of the petitioners (complainants) for opportunity for further evidence. In fact, an application under Section 191 Cr. PC has been moved in Criminal L.P. 687/2015 to such effect. The complainant is given liberty to move appropriate application before the concerned Metropolitan Magistrate who shall grant necessary opportunity to the complainant for such purposes as well.

9. The parties shall appear before the concerned Metropolitan Magistrate for further proceedings in accordance with law on 10.07.2017. Needless to add, the respondents will be obliged to furnish fresh bail bonds to regulate their presence in the further proceedings before the trial court.

10. The appeals are disposed of in above terms.

11. The trial court records shall be returned with copy of this judgment in each case. Dasti. R.K.GAUBA, J MAY 15, 2017 yg