CRI.APPEAL.632.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 632/2006
Annu Investment & Finance Co.
108, Handloom Market, 1st floor
Gandhibagh, Nagpur
Through its Proprietor
Mahendra Bhavarlal Asani. .. APPELLANT
versus
1) Sanjay Rajkumar Khanna
Aged major, C/o Siddarth Ramteke
Saibaba Ward,Near Janata School
Ballarpur, Dist. Chandrapur,
2) State of Maharashtra .. RESPONDENTS
...............................................................................................................................................
Mr. R.M. Patwardhan, Advocate for appellant
Advocate for respondent no.1 absent.
Ms. N.P. Mehta, Additional Public Prosecutor for respondent no.2
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 24th November, 2017 ORAL JUDGMENT:
1. This Appeal has been preferred by the original complainant against the judgment and order dated 25th August 2006, delivered in Summary Criminal Case No. 9109/2005 passed by the learned Judicial Magistrate, First Class, (Spl.Court), Nagpur, thereby acquitting the respondent no.2 ( hereinafter referred to as "the accused"), under Section 138 of the Negotiable Instruments Act, 1881 (in short,"N.I.Act"). ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 :::
CRI.APPEAL.632.06 2
2. The complainant's case, in brief, is that the complainant-firm is a Finance Company under the name and style, "Annu Investment & Finance Company ", at Nagpur and used to provide financial assistance to needy persons who want to purchase vehicle on hire-purchases basis, on completion of necessary formalities and on execution of required documents. The accused was in need of financial assistance for purchase of the vehicle bearing Registration No. MH-31/ W-2599 Tata L.P. Truck, Model 1991. Therefore, he approached the complainant and applied for the loan. The complainant on completing necessary formalities and executing the required documents, provided financial assistance to the accused by way of installments, with interest. Towards repayment of the amount, the accused issued a cheque bearing No. 074086 dated 22.8.2005 for Rs. 59,000/- drawn on Bank of Maharashtra, Ballarshah, Dist. Chandrapur in favour of the complainant. The cheque was deposited by the complainant for its encashment with its bankers i.e. Wardhaman Urban Cooperative Bank Limited, Nagpur. However it was returned unpaid as dishnoured by the bankers of the accused to the banker of the complainant, with its memo dated 6th September, 2005 mentioning the reason as "insufficient funds". Subsequently, the bankers of the complainant returned the cheque back to the complainant as unpaid. The complainant, therefore, issued a legal notice by registered post acknowledgment due on 21.9.2005 calling upon the accused to pay the dishonoured cheque amount. The said notice was returned back unserved with remarks as "not claimed", on 30.9.2005. The complainant waited for fifteen days notice period and as no payment was made by accused, filed the complaint. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 :::
CRI.APPEAL.632.06 3
3. Learned Judicial Magistrate, after framing the charge and upon recording the evidence of the complainant and the accused and on hearing both the sides, acquitted the accused of the offence punishable u/s 138 of the N.I. Act.
4. Heard Mr.R. M.Patwardhan, learned counsel for appellant and Miss N.P. Mehta learned APP for respondent no.2-State. The respondent no.1 and his counsel remained absent. With the assistance of both the counsels, I have gone through the entire record of the case meticulously.
5. Mr. Patwardhan strenuously argued that the learned trial court has not considered the evidence on record in its right perspective and has wrongly come to the conclusion that although according to the complainant the outstanding amount was Rs. 66,700/-, the cheque was allegedly of the amount of Rs. 59,000/- for which the complainant has not extended any explanation in that regard. He further argued that the accused has not substantiated his case as to why as many as ten cheques were issued by him and were deposited with the complainant. Even the accused has not produced any medical evidence to show that he was suffering from illness and, therefore, he was unable to repay the outstanding amount. The learned A.P.P., on the other hand, has supported the judgment of the trial Court.
6. After hearing on both the sides and on a perusal of evidence on record as well as the impugned judgment, it is noticed that the learned trial Court has carefully gone through the evidence adduced on record. On a perusal of the record, it is noticed that there are certain admitted facts which can be enumerated as under:- ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 :::
CRI.APPEAL.632.06 4
(i) Accused has admitted his signature on the disputed cheque (Exh.31).
(ii) Accused has admitted that he has taken a loan from the complainant to purchase the vehicle.
(iii) It is also admitted that there was execution of deed of hypothecation agreement as per Exh.29 and the accused remained in arrears of repayment of installments.
7. Exh. 29 demonstrates that the accused has agreed to repay the loan amount to the complainant in 24 installments including the principal amount and interest. The accused agreed to pay fourteen installments of Rs. 7000/- out of 24 installments. Remaining ten monthly installments of Rs. 6,600/- were also agreed to be repaid. Thus, the total amount of Rs. 1,64,000/- was towards the repayment of the loan of Rs,.1,20,000/- as agreed by the complainant. Exh.30, the extract of account relied upon by the complainant, shows that on 21.6. 2005 the amount of Rs. 66,700/- remained balance against the accused. However the disputed cheque (Exh.31) is of Rs. 59,000/- only. It is not clear from the evidence on record as to why the complainant has obtained the cheque of Rs. 59,000/- from the accused on 22.8.2005, when the amount of Rs. 66,700/- was outstanding against the accused on 21.6.2005, as per the statement of account.
8. So far as the case of the accused is concerned, the accused has put up a defence that the cheque (Exh. 31 ) was a blank cheque and it was bearing his signature. According to the accused, the said cheque was given by him to the ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 ::: CRI.APPEAL.632.06 5 complainant as a security when he obtained the loan from the complainant. He further stated that he has paid some installments regularly. However he could not pay the remaining amount due to the life threatening ailment of kidney, for which he was hospitalized for a long duration. According to the accused, the complainant has misused the blank cheque bearing his signature which was given towards security only. It is the specific case of the complainant that he never issued the said cheque in favour of the complainant towards the discharge of any liability as such. The complainant comes up with a case that when the notice was issued by the complainant as the accused was hospitalized, there was an endorsement in the notice as "not claimed". The testimony of the complainant depicts that when the accused failed to pay the installments on due dates and when he remained under the arrears of installment, the complainant did not issue any notice calling upon him to deposit the balance amount of installment. Significantly, the complainant has not stated in his evidence that on account of failure of the accused to pay the installments regularly, the accused has drawn the cheque (Exh.31) for payment of outstanding amount of installment. Thus, there is no evidence on record to show that there was outstanding amount of Rs. 66,700/- and in these circumstances, it is not clear as to why the cheque amount of Rs. 59,000/- was accepted by the complainant. As stated above, the complainant never asked the accused to pay the balance amount of installments which he remained in arrears. In these circumstances, it is not clear as to how and when the accused has drawn the cheque (Exh.31) in favour of the complainant.
9. It is worthy to note that the cheque (Exh.31) depicts that different ink is ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 ::: CRI.APPEAL.632.06 6 used while the cheque was signed. So also, there is difference in ink when the date as well as the amount was written on the cheque in question. The cheque also depicts that instead of complainant writing the name of the Finance Company, stamp of the said company was put on the said cheque. It is undigestable that the accused was having the stamp of Finance Company with him when he signed the said cheque. From the aforesaid evidence, it is amply clear that the stamp of the Finance company was put up on the cheque (Exh.31) subsequently in the absence of the accused. So also, the contents of the date and the amount were also written by the complainant in the absence of the accused. In these circumstances, the case put up by the accused appears to be more plausible than the case relied upon by the complainant. As it is already discussed above, the accused has put up his case that the disputed cheque was a blank cheque and it was given by him to the complainant and the contents of the cheque were filled in by the complainant in his absence. The said case put up by the accused appears to be convincing. In this context, it is well-settled that the accused has not to prove his case beyond reasonable doubt and he has to simply show the preponderance of probability.
10. Thus, the learned trial Judge has rightly come to the conclusion that the complainant failed to prove his case beyond reasonable doubt.
11. By now, the law is well-settled in respect of the appeal against acquittal. Merely because, the other view is possible that itself is not sufficient for the Appellate Court to record a different finding that though the Appellate Court has full power to re-appreciate the entire prosecution case. For exercising the appellate power, ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 ::: CRI.APPEAL.632.06 7 the judgment appealed against, has to be perverse one or the view taken by the Court below is impermissible on the basis of the evidence that is brought on record. In my view, the learned Magistrate of the Court below has correctly appreciated the facts brought on record by the prosecution. On re-appreciation of the entire prosecution case, I am of the view that, nothing is brought on record to upset the finding and order of acquittal passed by the learned Magistrate. Consequently, the Appeal fails and is dismissed.
JUDGE sahare ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:37 :::