Whether process can be issued against complainant of case of dishonour of cheque on the basis of defence of accused of that case?
Learned counsel for respondent no. 2 has pointed out to
me observations of the learned Magistrate while acquitting respondent
no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,
in my opinion, the respondent no. 2 has not done successfully.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (apl) No. 627 OF 2013 WITH
CRIMINAL APPLICATION No. 628 OF 2013
(1) Crim. Appln. No. 627/13
Ashok s/o Kishorilal Banarsi,
VERSUS
State of Maharashtra,
CORAM : S.B. SHUKRE, J.
DATED : 24.02. 2015.
Citation; 2015 ALLMR(CRI)4901
me observations of the learned Magistrate while acquitting respondent
no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,
in my opinion, the respondent no. 2 has not done successfully.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (apl) No. 627 OF 2013 WITH
CRIMINAL APPLICATION No. 628 OF 2013
(1) Crim. Appln. No. 627/13
Ashok s/o Kishorilal Banarsi,
VERSUS
State of Maharashtra,
CORAM : S.B. SHUKRE, J.
DATED : 24.02. 2015.
Citation; 2015 ALLMR(CRI)4901
https://www.lawweb.in/2016/01/whether-process-can-be-issued-against.html
