1 apeal8.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 8 OF 2016
Mr. P.P. Sudhakaran,
Aged about 67, Occupation - Business,
R/o Near Royal Computers,
Quarter No.4/62, Raje Raghuji Nagar,
Hanuman Nagar, Nagpur. .... APPELLANT
VERSUS
Mrs. Shyla Sathyan,
Aged about 54 years, Occ. - Business,
R/o Plot No.3, 181/182, Sarjugopi
Apartment, Ring Road, Trimurti Nagar,
Nagpur. .... RESPONDENT
______________________________________________________________
Shri G.N. Khanzode, Advocate for the appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 1 NOVEMBER, 2017.
st ORAL JUDGMENT :
Exception is taken to the judgment and order dated 22-8-2014 in Summary Criminal Case 20843/2013, delivered by the learned 28th Judicial Magistrate First Class and Special Court acquitting the accused of the offence punishable under Section 138 of the ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:12 ::: 2 apeal8.16 Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").
2. Heard Shri G.N. Khanzode, learned Advocate for the appellant/complainant.
None appears for the respondent.
3. The case of the complainant is that he and the husband of the accused are close friends since fifteen years. The complainant used to help the accused to tide over financial difficulties. The complainant contends that at the request of the accused, he extended financial help from time to time totalling Rs.2,65,000/-. The accused assured to repay the said amount within a year, which she failed to do. However, since the complainant insisted on repayment, the accused issued two cheques of Rs.2,00,000/- and Rs.65,000/-, both the said cheques were dishonoured when presented for encashment. Statutory notice was issued to the accused, there was no compliance and the complainant instituted proceedings under Section 138 of the Act.
4. The defence of the accused is that there was no transaction between the accused and the complainant. The accused contended that she did not borrow any amount from the complainant. She further ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:12 ::: 3 apeal8.16 contended that she did hand over certain blank cheques to the complainant as security for the loan extended by the complainant to her husband.
5. The learned Magistrate noted that since the accused did not deny signature on the disputed cheques Exhibit 20 and Exhibit 22, the accused would have to rebut the statutory presumption under Section 139 of the Act.
6. The complainant examined himself as C.W.1 and officials of the bank Rajkumar Kesharwani and Pramod Bhosale as C.W.2 and C.W.3 respectively.
7. The learned Magistrate has noted the following circumstances pointed out by the accused in support of her submission that the statutory presumption stood rebutted (a) the admission of the complainant that he had advanced money to the husband of the accused, (b) the admission of the complainant that he was unable to state the dates on which the money was advanced to the husband of the accused, (c) the contents of the cheques Exhibit 20 and Exhibit 22 are in different handwriting and ink suggesting that blank cheques ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:12 ::: 4 apeal8.16 have been misused, and (d) the complainant has not filed on record account statement.
8. The learned Magistrate has, on a holistic appreciation of evidence, recorded a finding of fact that the complainant had not transacted with the accused, but with her husband. The learned Magistrate does record a finding that the suggestions given by the accused to the complainant would show that the accused handed over the disputed cheques to the complainant as security for the amount advanced to her husband. The learned Magistrate has noted the judgment of this Court in Hiten Sagar vs. I.M.C. Ltd., 2001 Cri.L.J. 4311, to hold that the drawer of the cheque cannot be held accountable for discharge of liability of some other person without an inter se agreement to the said effect. The learned Magistrate noted that there is no evidence to suggest that the accused undertook to discharge the liability of her husband.
9. The learned Magistrate, has even otherwise, recorded a finding that the complainant failed to prove that he lent the amount of Rs.2,65,000/- to the accused. The learned Magistrate has noted the failure of the complainant to produce the accounts and in particular the ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:12 ::: 5 apeal8.16 failure of the complainant to produce on record the income tax returns despite having claimed to have disclosed the loan transaction in the income tax returns. The learned Magistrate has further noted that the contents of the disputed cheques are in different ink. The learned Magistrate has acquitted the accused holding that the evidence on record is insufficient to prove that the disputed cheques were issued towards discharge of legally enforceable debt or liability.
10. Since the view taken is not perverse, I am not inclined to interfere with the judgment of acquittal.
11. The appeal is without substance and is rejected. Bail bond of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:12 :::