1 appeal116of06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 116 OF 2006
Nitin s/o. Prabhakar Vaidya,
Aged about 40 years,
Occupation : business,
R/o. 4, Corporation Colony,
North Ambazari Road,
NAGPUR - 10. .... APPELLANT
VERSUS
Ashok Mahadeorao Panchbudhe,
Aged about : 55 years,
Occupation : Service,
R/o. Shree Apartment, Flat No. 301,
Kailash Nagar Chowk,
Old Subhedar Layout, NAGPUR .... RESPONDENT
______________________________________________________________
Mr. S.K. Sabhahatulla, counsel for Appellant.
Mrs. Kalyani Dharashivkar, counsel for Respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 3
rd NOVEMBER, 2017
ORAL JUDGMENT :
The appellant is aggrieved by judgment and order dated 5.10.2005 passed in Summary Criminal Case 764 of 2005, delivered by the Judicial Magistrate First Class, (Court-23) Nagpur, acquitting respondent / accused of offence punishable under section 138 of the ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:34:41 ::: 2 appeal116of06 Negotiable Instruments Act, 1881 ("Act" for short). 2 The appellant (hereinafter referred to as "the complainant") instituted complaint inter-alia under section 138 read with section 141 and 142 of the Act against the respondent (hereinafter referred to as "the accused"), the gist of which complaint is that the accused who is an employee of the State Bank of India borrowed Rs. 60,000/- from the complainant on 28.10.1998 as handloan. The accused is a relative of the complainant. The complainant advanced a handloan of Rs. 60,000/- in cash to the accused and the accused promised to repay the handloan within a short period.
The accused issued cheque 129740 for Rs. 60,000/- on 14.8.2000 towards discharge of the said loan. The cheque was dis- honoured with the endorsement "alteration required full signatures" and "cheque is out of date". The complainant noticed that the returned cheque revealed overwriting and scratching in the column of the date and the amount. It is the case of the complainant, that the accused misused his position as an employee of State Bank of India and altered and scratched the contents when the cheque was forwarded for clearance to State Bank of India.
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3 appeal116of06 3 The complainant lodged a police report on 22.8.2000
alleging cheating and also lodged complaints with the superior of the accused. The complainant issued statutory notice on 31.8.2000. The accused did not comply, hence the complainant set in motion the process of law.
4 The complainant examined himself as CW 1. The examination in chief is broadly consistent with contents of the complaint. It is elicited in the cross-examination of the complainant that the loan transaction is not documented. The attention of the complainant was invited to Exh. 35 and the complainant stated that Exh. 35 is the original cheque. The complainant denied the suggestion that the date 14.8.2000 on Exh. 35 is not in the handwriting of the accused. The complainant further denied the suggestion that the amount in words and figure in Exh. 35 is altered by the complainant which led to the dis-honour of the cheque. The complainant admits to have instituted a separate complaint on the basis of the cheque return memo Exh. 32 against the accused alleging commission of offences under sections 418, 420, 468 and 489 of the Indian Penal Code. The complainant admits that the report lodged at the Ambazari Police ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:34:41 ::: 4 appeal116of06 Station was prior to the institution of the complaint under section 138 of the Act. The complainant admits that the order of issuance of process restricted to under section 138 of the Act and the order framing particulars of offence Exh.5 were not challenged by the complainant. He further admits that the order of rejecting the application for addition of charges was also not challenged. The complainant admits that criminal complaint 87 of 2003 - State Vs. Ashok and the complaint under Section 138 of the Act are based on the same disputed cheque. He denies the suggestion that in view of the property dispute, he has resorted to altering contents of the dispute cheque and has falsely implicated the accused.
5. The complainant has examined Dilip Govindrao Raikwar CW 2. The said witness is an official of Punjab National Bank. He was shown Exh. 35 and he states that Exh.35 is the image copy of the cheque forwarded to Punjab National Bank by the service branch of the State Bank of India. CW 2 has deposed that whenever cheque is presented for realization, the same is forwarded to service branch of the bank on which the cheque is drawn and after cheque is forwarded by the said service branch to the Punjab National Bank, the same is processed and an image copy is retained in record. CW 2 states that after processing the cheque, the ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:34:41 ::: 5 appeal116of06 same is returned to concerned service bank of the bank. In the cross- examination, CW 2 admits that when Exh.35 was received by Ghat Road Branch of Punjab National Bank, he was not on duty in the said branch. He admits that he has not photocopied cheque Exh.35. He further admits that unless and until he peruses the original cheque, he cannot tell whether the photocopy is correct or not. He admits that he has not seen the original of Exh.35 and has no knowledge as regards the same.
6. The defence of the accused, as is discernible from answer to question 18 in the examination under section 313 of the Criminal Procedure Code, is that he is falsely implicated in view of family dispute.
7. The learned Magistrate has on a holistic and considered appreciation of evidence on record, recorded a finding that the complainant failed to prove that the disputed cheque was dishonoured due to insufficient funds in the account of the accused. The learned Magistrate further recorded a finding that the cheque dated 10-2-2000 was deposited on 16-8-2000, beyond validity period of six months. In view of the aforesaid two finding, the learned Magistrate was pleased to dismiss the complaint.
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6 appeal116of06
8. I have given my anxious consideration to the evidence on record and having done so, I am of the opinion that the finding recorded by the learned Magistrate is not only a possible view, but is the only view which could have been taken in the teeth of the evidence on record. The complainant failed to produce on record the original cheque. Concededly, Exh. 35 is an image copy. The disputed cheque is not dishonoured due to insufficient funds. The reasons given for dishonour are two fold. The first reason is that the alterations are not counter signed and the second reason is that the cheque is presented beyond the validity period.
9. It is axiomatic that the cheque is returned since the contents are altered, and interpolated. The complainant has not proved that the alteration and interpolations have been done by the accused after the cheque was forwarded to the State Bank of India. The fact that the accused is an employee of State Bank of India is not enough to draw an inference that the accused is responsible for the alteration and interpolations in the disputed cheque. The finding of the learned Magistrate that the cheque was deposited beyond the validity period of six months is unexceptionable.
The judgment impugned is certainly not perverse and I do not ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:34:41 ::: 7 appeal116of06 see any compelling reason to interfere in the judgment of acquittal.
The appeal is sans merit and is rejected.
Bail bond of the accused shall stand discharged.
JUDGE Belkhede ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:34:41 :::