CRI.APPEAL.430.08
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 430/2008
Washim Urban Cooperative Bank Limited
Washim, Branch Washim
Tahsil and District: Washim .. APPELLANT
v e r s u s
1) State of Maharashtra
2) Kisan Bhika Jadhav
Aged 40 years, resident of Jyotibanagar,
Shendona, Tahsil Manora,
Dist. Washim .. RESPONDENTS
...........................................................................................................................
Ms. A.Kshirsagar, Adv.h/for Mr. A. S. Mardikar,
Senior counsel for the appellant
Mr. V.P. Gangane, Additional Public Prosecutor for appellant no.1
None for the respondent no.2
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CORAM: MRS. SWAPNA JOSHI, J.
DATE OF RESERVING : 31.05.2017
DATE OF PRONOUNCEMENT: ...06.2017
JUDGMENT:
This Appeal has been preferred by the complainant against the judgment and order dated 15.11.2005 thereby acquitting the accused/ respondent no.2 in Summary Criminal Case No. 873/2005 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I.Act").
2. The case of the complainant, in brief, is that the complainant-Bank granted cash credit facility of Rs.10,000/- to the respondent no.2/accused- ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 :::
CRI.APPEAL.430.08 2 Kisan, on 09.04.2001. The accused executed necessary documents in favour of the Bank. There was an outstanding amount of Rs.14,380/-. An award of Rs. 14,380/- was passed by the Assistant Registrar, Cooperative Societies, with interest thereon. On 01.03.2005, the amount due with interest was to the tune of Rs. 20,004/-. On 23.02.2005 a cheque was issued by the accused in respect of the loan outstanding against him for the amount of Rs.20,004/- bearing Cheque No.626151 thereby admitting his liability. The said cheque was issued by the accused towards outstanding amount and for crediting the same in the account of his father. The said cheque was presented in the Bank. However on 12.03.2005, it was dishonoured for want of sufficient funds in the account of the accused. On 17.03.2005, the complainant-Bank issued notice to the accused for payment of the cheque amount, which was received by the accused on 21.03.2005. As the accused failed to pay the said amount, the complaint was lodged by the complainant on 09.05.2005. In fact, he should have filed it on or before 07.05.2005 ie, within fifteen days from the receipt of notice by the accused. However, the delay of two days was condoned by the learned Magistrate on considering the evidence before the Court and acquitted the accused.
3. Heard Ms.Kshirsagar, learned counsel for the complainant. She vehemently argued that the accused had issued a cheque on 23.02.2005 for the payment of loan outstanding against him, which was dishonoured, for want of sufficient funds. According to her, since the notice was served upon the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 3 accused on 21.03.2005, the complainant has established the procedural requirements of Section 138 of the N.I. Act. It is submitted that the impugned judgment is illegal and perverse, in as much as the learned Magistrate has not considered the evidence on record in its right perspective.
4. As against this, Shri Gangane, learned Additional Public Prosecutor contended that the learned Magistrate has rightly considered the evidence on record. According to learned A.P.P. the accused had issued the said cheque by way of security of transaction of loan. The learned A.P.P. pointed out that there is an unexplained delay in lodging of the complaint and the accused had given an undertaking after lodging of the complaint. Hence, it is of no assistance to the complainant for the purpose of extending the limitation. So also, the cheque issued by the accused was deposited in the account of his father which indicates that the entire transaction was with the father of the accused and not with him. Therefore, the case does not fall within the ambit of Section 138 of the N.I. Act.
5. I have considered the rival contentions of both the sides and gone through the record carefully. As far as the contention of the learned A.P.P. that there is an unexplained delay in lodging of the complaint, it is apparent that the said delay is not satisfactorily explained. The learned Magistrate has expressed that the delay is condoned, as per the order passed on Exh.1. However the order depicts that the delay in lodging the complaint was condoned, subject to proving the cause, at the time of trial. According to the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 4 complainant, the delay in lodging of the complaint was caused as the accused had assured the Bank to pay the amount. The said reason has not been elaborated in the evidence of the complainant. The said reason is not a plausible explanation as the complainant had already made up his mind to lodge the complaint against the accused. So far as the provisions of Section 138 are concerned, they are very categoric that fifteen days for the payment of the amount commences from the date of receipt of the notice. Proviso under section 142(b) clarifies that if the delay is satisfactorily explained, it may be condoned. However, in the present case, the cause for delay in lodging the complaint remained unexplained which goes to the root of the case and on this count, the complaint could not be ignored.
6. The cheque amount of Rs.20,004/-was allegedly outstanding against the accused and so far as the cheque is concerned, it is in the name of Recovery Officer, Washim Urban Cooperative Bank, Branch Manora. The cheque is dated 23.02.2005. Exh.26 which is the the extract of the account of the accused dated 28.02.2005 reveals that the amount of Rs.13,509/- was outstanding against the accused. In fact, it was the duty of the complainant to maintain the credit account of the outstanding amount. The said amount was shown as Rs.13,509/- and not as Rs. 20,004/-, as claimed by the complainant. It is the case of the accused that the complainant had received the said cheque at the time of granting of loan which bears his signature. According to the accused, it was a security cheque. The complainant has not proved that the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 5 cheque was issued from a particular cheque book. The said fact would have proved as to when the cheque was issued, whether at the time of signing the loan papers or thereafter. The complainant-Bank has failed to adduce any evidence in that regard. Similarly, it was the duty of the complainant to prove as to who had written the contents in the cheque and the date on it, so also the amount. From the contents in the cheque, it is noticed that the handwriting of the contents in the cheque and of the signature on the cheque are totally different. It appears that the accused has simply signed on the cheque and the contents in the cheque were filled in by some different person. Interestingly, the complainant has not given the correct account of the outstanding amount at the time of issuing of the cheque by the accused. The complainant ought to have clarified the exact amount outstanding against the accused. Merely submitting that the accused had given the cheque for the payment of outstanding loan and it is dishonoured, is not sufficient to prove the guilt of the accused, under the provisions of Section 138 of the N.I. Act. It indicates that the cheque was obtained from the accused towards security. It is surprising to note that the complainant did not verify the account Number of the said cheque at the relevant time. It appears that the account was of the father of the accused and the transaction was also with the father of the accused. As per the contention of the complainant, the cheque was drawn in the account bearing Savings Account No.1209 for Rs.20,004/- and the cheque (Exh.19) was issued by the accused towards the outstanding loan amount and ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 6 for crediting the same in the account of his father. Pertinently, the statement of account (Exh.26) indicates account number of the accused as 0000226. It means that the account number of the accused was 0000226 and not 1209, which was mentioned on the cheque. It also indicates that the said account No.1209 was not of the complainant and it appears that the cheque was drawn on the account of the father of the accused, as stated by the complainant in his complaint. In view of the said discrepancy in the account number mentioned on the cheque and on the statement of account of the accused, the offence punishable u/s. 138 of the N.I. Act is not made out against the accused. So far as the provisions under section 138 of the Act are concerned, to constitute the offence u/s 138 of the N.I. Act, the following ingredients are required to be fulfilled:-
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in while or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 7 a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
7. It is the pre-requisite of the offence punishable under section 138 of the N.I. Act, that the a cheque drawn by a person must be on an account maintained by him with a banker for payment of an amount and if such a cheque is dishonoured, the drawer of the said cheque will be liable for the said offence. In the instant case, it is found that the cheque in question was not drawn on the account maintained by the accused in Washim Urban Cooperative Bank, Washim. In these circumstances, no case is made out against the accused for the offence punishable u/s 138 of the N.I. Act.
8. In the case of Jugesh Sehgal vs. Shamsher Singh Gogi, reported in MANU/SC/1198/2009, it happened that the dishonoured cheque was issued from an account which was not maintained by the accused but it was of some other person. Therefore, a complaint was lodged against the accused for the offence punishable u/ss. 420, 467, 468, 471 and 406 of the IPC. It was held by the Hon'ble Supreme Court that the very first ingredient of Sec.138 of the Act is not satisfied and, as such, the offence u/s 138 of the Act cannot be ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 8 proved.
9. In the instant case, as discussed above, the cheque was issued by the accused which was drawn on the account which was not belonging to the accused but someone else. It appears that the said account was of the father of the accused. In view thereof, it can safely be said that the ingredients of Section 138 are not attracted.
10. The complainant has relied upon the undertaking (Exh.29) dated 25.07.2005 which was given by the accused after filing of the complaint. Therefore the said undertaking does not cover the liability of the accused as it was given after lodging of the complaint and it does not give any benefit to the complainant for the purpose of enhancing the limitation to lodge the complaint. It is worthy to note here that paragraph 3 of the complaint reveals that the cheque was given towards outstanding and for crediting the same in the account of his father. It is,thus, clear that the cheque was issued in respect of the account of the father of the accused and not related to the account of the accused. Paragraph 2 of the complaint reveals that the cheque was issued from the account of the accused. However, the account number is not mentioned. In paragraph 3 of the complaint, it is mentioned that the cheque was issued for crediting the same in the account of father of the accused. The said fact makes amply clear that it does not attract the provisions of Section 138 of the N.I.Act. On careful scrutiny of the case, it appears that the loan transaction was with the father of the accused and the accused had handed ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 ::: CRI.APPEAL.430.08 9 over the cheque which was to be credited in the account of his father, to repay the outstanding amount due on his father and the said cheque was utilised by the bank authority for securing the dues of the accused from his account i.e. Account No. 0000226.
11. Thus, the complainant has utterly failed to prove that the cheque was drawn on the account of the accused. The ingredients of section 138 of the N.I. Act are not proved by the complainant. The accused is therefore entitled for acquittal.
12. It is well-settled principle of law that in exercise of its appellate jurisdiction particularly in appeal against acquittal, it is not open to this Court to substitute its own view with the view taken by the lower court, unless the view taken by the lower Court is illegal, perverse or against the principle of law. No sufficient grounds are made out at the appellate stage so as to interfere with the impugned judgment and order. Since no perversity or illegality is noticed in the impugned judgment and order of the learned Magistrate, the Appeal is liable to be dismissed.
In the result, the Appeal is dismissed, with no order as to costs.
JUDGE sahare ::: Uploaded on - 21/06/2017 ::: Downloaded on - 22/06/2017 01:03:07 :::