Appeal in 138 Negotiable
Instruments Act case
Format of appeal in 138 NI Act case under
section 374(3) Cr. P. C.
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr. ____________________
_______________________
_______________________ Appellant
VERSUS
Mr. ____________________
_______________________
_______________________ Respondent
CRIMINAL APPEAL U/S. 374
(3) Cr. P.C. AGAINST ORDER OF CONVICTION DATED _____ AND SENTENCE DATED _______
PASSED BY THE COURT OF _____________, MM, ____ COURTS, ________, IN THE ABOVE
MENTIONED COMPLAINT CASE N0. ___/__/20__
MOST RESPECTFULLY SHOWETH:
1. That the present appeal
is preferred by the appellant above named against final judgment of conviction
dated _________ and sentence dated _______ passed by the court of _____________
, in the above mentioned Complaint Case No. __/__/20__ thereby Ld. Magistrate held
the appellant guilty and sentenced him simple imprisonment for ___ year and
further directed to pay as compensation of Rs. ______ and in default of payment
of fine further simple imprisonment of __ months. The certified copy of
judgment and sentence dated ___________ & __________ are annexed herewith
as Annexure-A (Colly)
2. That in the instant case
following legal issues are involved to be adjudicated.
A. Whether
_______________________ _____________.
B. Whether
_______________________ _____________.
C. Whether
_______________________ _____________.
3. That the brief facts
leading to filing of the instant appeal are as under:-
4. That the
respondent/complainant made a complaint U/s. 138 N.I. Act on ______ against the
appellant for dishonor of cheque for the amount of Rs. ____________/-
(___________ Lakh).
5. That as per respondent/
complainant, the complainant is working as a call ________________ and the
appellant is also working as __________ in __________ at _________.
6. That as per respondent's
complaint, the respondent and appellant are known to each other for the last __
years and are residing in the same vicinity. It is alleged that the Appellant
had approached the respondent / complainant for a personal / friendly loan of
Rs. ____ lakh from him in the month of ___, 20__ for a period of ___ months and
keeping in view the dire need of appellant , the respondent had advanced him an
amount of Rs. ___ lakh. It is further alleged that in order to discharge the
said liability accused had issued a cheque bearing no. ___________ dated
__________ for a sum of Rs _________/- drawn on __________, __________ , _____
in favour of the Respondent.
7. That the respondent
presented the said cheque in question for encashment through his Banker but the
same was got dishonored by banker with with the remarks "funds
insufficient" vide return memo dated __________.
8. That on _________
respondent/ complainant sent legal notice U/s. 138 (b) of N.I. Act. When the
said cheque amount was not paid, the respondent filed the present complaint.
The copy of the complaint is annexed herewith as Annexure-B.
9. That vide order dated
__________ Ld. Magistrate summoned the appellant and on ___________, the
appellant moved the application U/s 145(2) of NI Act and the notice U/s.251 Cr.
P.C was framed against appellant to which appellant pleaded not guilty. The
copy of the application and notice U/s.251 Cr. P.C is annexed herewith as Annexure-C
(Colly).
10. That during trial the
respondent examined only himself as CW-1. The respondent placed on record his
evidence by way of affidavit and exhibited certain formal documents and he was
cross examined by the counsel for the appellant. The copy of the evidence and
corss-examination of the respondent and exhibits are Annexure-D
(Colly).
11. That after completion
of only one C.W., statement of Accused U/s. 313 Cr. P.C. was also recorded
wherein appellant stated that since he had not handed over any cheque to the
respondent and the respondent has deposed against him to falsely implicate him.
The copy of the statement of appellant U/s. 313 Cr.P.C. is annexed herewith
as Annexure-E.
12. That in order to prove
his innocence the appellant examined himself as DW1 and stated in his chief
examination that ________________ _______________. The copy of the chief and
cross of the appellant as DW1 is annexed herewith as Annexure-F.
13. That the appellant also
examined Sh. ___________ S/o. Sh._____________ as DW2, Sh. ____________ S/o.
Sh. ___________ as DW3 and _____________ S/o. Sh. ___________ as DW4. The copy
of the Defence Evidence and cross examination is annexed herewith as Annexur-G(Colly).
14. That Ld. Magistrate
after hearing of the case and perusing the evidence on record convicted and
sentenced the appellant for the offence U/s. 138 N.I. Act.
15. That the appellant is
preferring the present appeal following among other grounds:
GROUNDS
A. That the impugned
orders/judgment of the Ld. Trial Court is against the facts of the case and
law.
B. That the respondent has
not supported his case on the ground of friendly loan through any other
documents i.e. Bank Statement as the same was given in cash.
C. _______________
_________________
D. _______________
_________________
E. That the appellant had
rebutted the presumptions U/s. 118 & 139 NI Act not only by examining his
own witnesses but also through the cross examination of the complainant who is
the only complainant witness. In order to rebut the legal presumption in
question, the accused need not require direct evidence to disprove the
existence of consideration.
F. Any other grounds with
the kind permission of this Hon'ble Court at the time of oral arguments.
PRAYERS
In view of the aforesaid
facts and circumstance of this case, it is most respectfully prayed that the
Hon'ble court may be pleased:
1. To set aside the order
of conviction dated _______ and sentence dated _______ passed by the Court of
_______ _______ _______, in the Complaint Case N0. ____/__/20__.
2. To call for the record
of Trial Court;
3. To pass any other or further
order (s) as this court may deem fit and proper in favour of appellant, in the
interest of justice.
APPELLANT
THROUGH
____________ADVOCATE
Place:
Date:
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr. ____________________
_______________________
_______________________ Appellant
VERSUS
Mr. ____________________
_______________________
_______________________ Respondent
INDEX
|
SNo. |
Particulars |
Page |
Court Fee |
|
1. |
Memo of Parties |
A |
|
|
2. |
Appeal under section 374(3) of CrPC along with Affidavit |
|
|
|
3. |
Annexure - A (Colly) Copy of Judgment and
Sentence dated ______ & _______ |
|
|
|
4. |
Annexure - B Copy of Complaint under
section 138 of Negotiable Instruments Act |
|
|
|
5. |
Annexure - C Copy of Application and Notice under
section 251 CrPC. |
|
|
|
6. |
Annexure - D (Colly), Copy of evidence and
cross examination of the respondent/ complainant along with exhibits. |
|
|
|
7. |
Annexure - E Copy of statement of accused under
section 313 CrPC |
|
|
|
8. |
Annexure - F (colly) Copy of the Chief and
Cross examination of Appellant as DW1. |
|
|
|
9. |
Annexure - G Copy of the Chief and
Cross of DW2 and DW3 |
|
|
|
10. |
Application under section 389 CrPC for suspension of sentence
along with affidavit |
|
|
|
11. |
Vakalatnama |
|
|
APPELLANT
THROUGH
____________ADVOCATE
Place:
Date:
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr. ____________________
_______________________
_______________________ Appellant
VERSUS
Mr. ____________________
_______________________
_______________________ Respondent
MEMO OF PARTIES
Mr. ____________________
_______________________
_______________________ Appellant
VERSUS
Mr. ____________________
_______________________
_______________________ Respondent
APPELLANT
THROUGH
____________ADVOCATE
Place:
Date:
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr.
____________________
Appellant
VERSUS
Mr.
____________________ Respondent
AFFIDAVIT
I ______________________
____ years, S/d/o. _________________ R/o. ____________ ______________ _____, do
hereby solemnly affim and declare as under:-
1. That I am the appellant
in the present case and as such I am well conversant with the facts and circumstances
of the present matter and am competent to swear this affidavit.
2. That the accompanying
Appeal U/S. 374 (3) Cr. P.C. has been drafted by my counsel under my
instructions and the contents of the same have been read over and explained to
me in vernacular and the same are true and correct. That the contents of the
same may be treated as part and parcel of this affidavit as the same are not
being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION
Verified at ___________ on this __ day of ____. 20__ that the contents of the
above affidavit are true and correct to the best of my knowledge and belief and
nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr.
____________________
Appellant
VERSUS
Mr.
____________________ Respondent
APPLICATION UNDER SECTION
389 CR.P.C. FOR SUSPENSION OF SENTENCE AND FOR GRANT OF BAIL
MOST RESPECTFULLY SHOWETH:
1. That in the present case the appellant has been convicted for
offence under Section 138 N.I. Act by Ld. Trial Court of
______________________________, at _________, in complaint case No. ____/__/__
thereby Ld. Magistrate held the appellant guilty and sentenced him simple
imprisonment for __ year and further directed to pay as compensation of Rs.
___________/- and in default of payment further simple imprisonment of 3
months.
2. That the facts and
grounds of Appeal are set out in the appeal, which are not reproduced herein
for the sake of brevity, however the same may be treated as part and parcel of
this application for suspension of sentence and for grant of bail till the
final disposal of the appeal.
3. That the appellant is
not a previous convict. The appellant is law abiding citizen and has clean
antecedents having deep roots in the society.
4. That the appellant
undertakes that in the event the appellant fails to succeed in the appeal, the
appellant shall surrender to serve out the final sentence that may be passed by
the Hon'ble Court and that the appellant will abide by the terms and conditions
which would be imposed upon the appellant by this Hon'ble court, while granting
bail to the appellant pending the decision of the appeal.
5. That the appellant has
not preferred any other similar application either before this Hon'ble court or
before the Hon'ble the Supreme Court of India.
PRAYER
It is , therefore most respectfully prayed that this Hon'ble Court may be
pleased to :
1. Suspend the sentence of
imprisonment and of compensation of Rs. _____________/- awarded on _______
& _______ and grant bail to the appellant on such terms and conditions as
this Hon'ble Court may deem fit and proper, in the interest of justice.
2. Pass any other or
further order as this Hon'ble court may deem fit and proper in the facts and
circumstances of the case, in the interest of justice.
APPELLANT
THROUGH
____________ADVOCATE
Place:
Date:
IN THE COURT OF
_______________ JUDGE AT _______________
CRIMINAL APPEAL NO _________ OF 20__
IN THE MATTER OF
Mr.
____________________
Appellant
VERSUS
Mr. ____________________ Respondent
AFFIDAVIT
I ______________________
____ years, S/d/o. _________________ R/o. ____________ ______________ _____, do
hereby solemnly affim and declare as under:-
1. That I am the appellant
in the present case and as such I am well conversant with the facts and
circumstances of the present matter and am competent to swear this affidavit.
2. That the accompanying
Application U/S. 389 Cr. P.C. has been drafted by my counsel under my
instructions and the contents of the same have been read over and explained to
me in vernacular and the same are true and correct. That the contents of the
same may be treated as part and parcel of this affidavit as the same are not
being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION
Verified at ___________ on this __ day of ____. 20__ that the contents of the
above affidavit are true and correct to the best of my knowledge and belief and
nothing material has been concealed therefrom.
DEPONENT
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