APPEAL FOR DISHONOUR OF CHEQUE IN THE COURT OF HON’BLE DISTRICT AND SESSIONS COURT, INDORE

Company law Oct 3, 2020 0 Add to Reading List

Criminal Appeal No.____/2020

IN THE MATTER OF:

Mr. A son of Mr. B, aged about 35 years,

Occupation business, residing at

_______, Indore

..............................................Appellant/Complainant

VERSUS

Mr. C son of Mr. D, aged about 40 years,

Occupation service, residing at

_______, Indore

........................................................Respondent/Accused

MEMORANDUM OF APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE CODE, 1973 AGAINST ORDERS OF CONVICTION FOR THE OFFENCE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS AST

The Appellant submit as follows:

That the address of the appellant for the purpose of issue of notices etc., from this Hon’ble authority is as sown in the cause title and also that of his advocate ____________________________________, Indore
That the address of the respondent for the similar purpose is as shown in the cause title.
Being aggrieved by judgment passed by Hon’ble the Addl. Chief Metropolitan Magistrate, Indore in the impugned judgment in C.C.No.____/2020 dated 05.07.2020 convicting the appellant under section 138 of Negotiable Instrument Act, this appeal is filed under section 374 of Criminal Procedure Code.

BREIF FACTS OF THE CASE:

The Appellant submits that, the complainant filed complaint before Hon’ble Trial Court under section 138 of Negotiable Instruments Act alleging that himself and the appellant were known to each other for several years. The appellant further submits that on 06/01/2020 the accused namely Mr. B had approached the complainant/appellant personally and asked for a friendly loan of Rs. 30,000 and on the same day the appellant grant him loan of Rs. 30,000. The appellant further submits that towards payment of amount of loan the accused/respondant issued Cheque No. 2396 Dated 05/04/2020 for Rs. 30,000 to the complainant. The said cheque was issued from Account No. ____________________which is held in the name of the accused/respondent. The appellant further submits that at the time of handing over the above said cheque the accused/respondent had assured the complainant/appellant that the said cheque will be honoured/ enchased on presentation. Taking the above assurance/representation as true, the complainant/appellant had accepted the above said cheque. That on the basis of the assurances given by the accused, the complainant/appellant presented the above said cheque with its bankers namely ______ and was dishonoured vide cheque return advice dated 25/04/2020 issued by the complainants/appellant bank. The aforesaid cheque was returned unpaid vide returning memo dated 26/04/2020 with the remarks "FUNDS INSUFFICIENT". That appellant further submits that on account of the dishonour of the said cheque, the complainant/appellant had served a legal notice dated 01/05/2020 upon the Accused by way of Registered Post vide Receipt No. ___. However, despite service of notice, the accused has not taken any steps to liquidate his liability and has failed to make balance payments to the complainant/appellant towards the amount covered under the said cheque. The appellant further submits that the accused/respondent have failed to make payment against the said cheque which has been done by them malafidely, intentionally and deliberately and knowingly. That at the time of issuing the said cheques the accused was fully aware that the said cheques will not be honoured on presentation. Therefore, the accused/respondent has dishonestly induced the complainant to advance a sum of Rs. 30,000 /- (Rupees Thirty Thousand Only) fully knowing that he cannot repay the said amount to the complainant. The appellant further submits that on the basis of such averment and legal notice filed the criminal case against the accused /respondent under section 138 of Negotiable Instrument Act.
The appellant further submits that, before Hon’ble Trial Court that he has taken following defence. The appellant/complainant advancing small loan to the respondent, whereas respondent is not in financial status to repay the loan but due to friendly relations with the respondent appellant sanction the loan in the name of the respondent. The appellant further submitted before the Trial Court that the respondent makes sure that within 2 month he will re-pay the whole amount of loan with interest. The Appellant further submit before the Trial court that categorically taken the defence that, the respondent breaches his trust and was never in the intension to pay back the loan amount. The appellant further submits that, but the Hon’ble Trial Court without appreciating the oral and documentary evidence produced by the appellant/complainant, given a finding that accused is not liable for conviction and acquitted him from the charges. The appellant further submits that due to this he suffered heavy loss and financial harm. Thus legally and literally the judgment passed by Trial Court is a void document and for the said reasons the appellant/complainant approached this Hon’ble Court by filing this appeal with an ardent request to quash and set aside the said judgment both on merits as well as on technical issue raised above. The appellant/complainant amongst other grounds urge the following grounds on the basis of which this Hon’ble Court may kindly set aside and quash the impugned judgment and convict the respondent/accused, the grounds urged by the appellant/accused are as follows.

GROUNDS

The findings arrived by the Hon’ble Trial Court are against the facts on record
The findings arrived by the Hon’ble Trial Court are against the laws of the land.
The Trial Court should have accepted the defence of the respondent/accused.
The observations made by the Hon’ble Trial Court in the impugned judgment in C.C.No.__/2020 dated 5.7.2020 is perverse, arbitrary and liable to be set aside.
The impugned judgment passed by the Trial Court is not in accordance with provisions of Criminal Procedure Code, since it has not passed any order regarding sentences as such liable for set aside.
The Hon’ble Trial Court not at all appreciated the evidence of appellant/complainant though he himself examined, the judgment is liable to be set aside and matter may be remitted back to Trial Court.
The respondent/accused could not secure the relevant documents at the time of trial before the Hon’ble Trial Court and same may be received by this Hon’ble appellate court or a direction may be issued to receive the same by the Trial Court, by remanding back the matter to the Trial Court, after setting aside the impugned judgment passed by Trial Court.
All other grounds which are not urged and pleaded in this appeal would be argued during the course of final arguments of this appeal.
The appellant humbly prays to treat all the defence, oral and documentary evidence before the Trial Court on behalf of appellants as part and parcel of this appeal.

PRAYER

WHEREFORE, the appellant humbly prays that the Hon’ble Court may kindly pass:

To call for all the records in C.C.No.___/2020 which was decided finally on 05.07.2020 by the Hon’ble Addl. Chief Metropolitan Magistrate, Indore.
To kindly quash and set aside the impugned judgment C.C.No.___/2020 dated 05.07.2020 passed by the Hon’ble Addl. Chief Metropolitan Magistrate, Indore. and consequently convict the accused.
Grant any such other relief as this Hon’ble Court deems fit in the circumstances of the case.
Allow the appeal in the interest of justice and equity.

It is prayed accordingly.

PLACE:

DATED

APPELLANT

THROUGH:

ADVOCATES

AFFIDAVIAT

IN THE COURT OF HON’BLE DISTRICT AND SESSIONS COURT, INDORE

Complaint Appeal No. ____ of 2020.

Mr. A son of Mr. B, aged about 35 years,

Occupation business, residing at

_______, Indore

..............................................Appellant/Complainant

VERSUS

Mr. C son of Mr. D, aged about 40 years,

Occupation service, residing at

_______, Indore

…….....................................................Respondent/Accused

Affidavit of Mr. A, S/o Mr.B, R/o _____________________________, Indore, Madhya Pradesh

.................................................Deponent

I, the deponent above named do hereby solemnly affirms on oath as under:-

That the deponent is appellant in the above petition and as such is fully aware of the facts deposed to below.
That the deponent has filed the present complaint for dishonour of cheque against the accused, that the contents of the said suit may be read and understood as a part of this affidavit which are not being repeated herewith for the sake of brevity.
That the deponent hereby verifies that contents made in the suit are correct & true.
That the complaint of the deponent is liable to be allowed for reliefs claimed.

...........................Deponent

VERIFICATION

I, Mr.A, s/o Mr. B aged about 35 years, R/o__________, Indore, being appellant/complainant in this appeal, do hereby verifies that the contents of para 1 to all of the above appeal are true to the best of knowledge & belief. Nothing material has been concealed herewith & no part of it is untrue.

Verified at Indore on …………..

...............................Deponent