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 Annexure-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