CRI.APPEAL.113.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 113/2006
Nizar Ali s/o Noor Ali Satyani
Aged about 41 years occu: Business
R/o 201, Jaideo Complex Central Avenue
Chapru Nagar Square, Nagpur
P.S. Lakdganj,Presently R/o Flat No. 205, 206, East Block
Karimabad Housing Cooperative Society Ltd.
Opp: Poonam Chamber, Byramji Town, Nagpur
Dist. Nagpur. .. APPELLANT
versus
1) M/s Midland Pharmaceuticals
Plot No. D-28, MIDC Nagpur
Through its Partner: Arun Balkrishna Sarjoshi
Plot No. D/28, MIDC, Nagpur PS MIDC
2) Shivprasad s/o K.Sarkar
Aged about 52 years, occu: Partner of
M/s Midland Pharmaceuticals
Plot No. D-28, MIDC Nagpur
PS MIDC Nagpur, Dist. Nagpur.
3) The State of Maharashtra
Through Police Station Officer
P.S. Lakadganj, Nagpur
(Added as per court's order dated 10.1.07).. .. RESPONDENTS
...............................................................................................................................................
None for the appellant
Mr. A.A. Choube, Adv. for respondent nos.1 & 2
Mrs. M.A. Barabde, Additional Public Prosecutor for respondent no.3-State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 24th November, 2017 ORAL JUDGMENT: ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:38 ::: CRI.APPEAL.113.06 2
1. This Appeal has been preferred by the original complainant against the judgment and order dated 3rd December 2005, delivered in Summary Criminal Case No. 159/1997 passed by the learned Judicial Magistrate, First Class, (Spl.Court), Nagpur, thereby acquitting the respondent nos.1 and 2 (hereinafter referred to as "the accused"), under Section 138 of the Negotiable Instruments Act, 1881 (in short, "N.I. Act").
2. The complainant's case, in brief, is that the accused issued an account payee cheque No. 627903 dated 14.2.1997 of Rs. 2,00,000 in favour of the complainant. The said cheque was presented on 19.2.1997 in the Oriental Bank of Commerce, Gandhibag, Nagpur, for encashment. It was dishonoured and returned with the bank memo dated 20.2.1997 for the reason "exceeds arrangements". The complainant issued a legal notice on 22.2.1997 to the accused. It was received by the accused on 28.2.1997. The accused failed to make the payment of dishonoured cheque and, as such, the complainant has filed the complaint on 20.3.1997 against the accused.
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. The appellant and his counsel both are absent, even on second call. Heard Mr. A.A.Choube, learned Advocate for respondents 1 and 2 and Mrs. M.A. Barabde, learned Additional Public Prosecutor for respondent no.3-State. With the assistance of both the counsels, I have gone through the entire record of the case ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:38 ::: CRI.APPEAL.113.06 3 meticulously.
5. The complainant has examined himself and has relied upon necessary documents, such as dishonour of cheque (Exh. 33), cheque deposit slip (Exh.34), cheque return memo of State Bank of India (Exh.35), memo of Oriental Bank of Commerce (Exh.36) and copy of notice dated 22.2.1997 (Exh.37). It is the specific case of the complainant that the accused nos.1 and 2 are partners of the firm, by name, M/s Midland Pharmaceuticals and they runs a business of supplying empty bottles. The complainant provided handloan of Rs. 2 lakhs in the year 1996 to the accused. The accused issued a cheque towards the said handloan. The said cheque was deposited in the Oriental Bank of Commerce on 14.2.1997. However it was returned with the endorsement "insufficient amount" in the account of the accused. At the request of the accused, the said cheque was again presented with the said Bank. However on 19.2.1997 it was again dishonoured for the reasons "exceeds arrangement" vide cheque return memo dated 20.2.1997. The complainant then issued legal notice on 22.2.1997. Despite receipt of the notice, the accused did not bother to pay the amount of the dishonorued cheque. It is significant to note that the complainant admitted that there was no mention in the complaint lodged by him that he was having business of supplying empty bottles and he had given hand-loan to the accused as he was having family relations with him. The complainant also admitted that he had given the hand loan to the accused in the year 1996. The complainant has fairly admitted that he and his father was doing the business, by name, Asian Bottle and there was business transaction between his father and the accused. Thus it is ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:38 ::: CRI.APPEAL.113.06 4 clear that there was no business transaction between the complainant and the accused. The complainant further admitted that there was an outstanding amount of more than Rs.1,70,000 against the accused in relations to the said Asian Bottle. He however failed to produce any document to show that he had paid an amount of Rs. 2 lakhs to the accused. The complainant has further admitted that his father had filed as many as four complaints against the accused before the Court of learned Judicial Magistrate First Class and those cases were withdrawn as he was satisfied that the payment was made by accused to the complainant. The said fact indicates the conduct of the complainant that he was in the habit of lodging complaints against the accused.
6. It is significant to note that when the cheque (Exh. 33) is perused, it is noticed that there is difference in the writing name, amount in figures and words and the signature of the accused, which complainant has fairly admitted in his cross- examination. Thus, from the disputed cheque, it is not clear that the said cheque was issued towards the existing liability since there is difference in the ink used in writing the name of the complainant, the amount in figures and words and the signature of the accused. It is not proved by the complainant that the said disputed cheque was issued in his favour by the accused. In the evidence before the Court, the complainant has come up with the case for the first time, that he had issued hand-loan of Rs 2 lakhs to the accused. However in order to substantiate his case, he has not produced any document in that regard. In these circumstances, the contention of the accused that the cheque was issued blank towards security, appears to be probable one. The ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:38 ::: CRI.APPEAL.113.06 5 complainant has failed to examine any bank witness to prove the contents in the cheque return memo Exh.35 and 36. Thus, the complainant has failed to prove that the said cheque was dishonoued for the reason "exceeds arrangement". Thus there is no evidence on record to show that there was any liability against the accused. Even the complaint also does not reveal that there was any liability against the accused. Since there is difference in the name, amount in figures and words and the signature on the cheque (Exh.33) the presumption u/s 138 of the N.I. Act cannot be drawn, it is is available only for the payee or holder in due course. Due to the difference in ink which is reflected on the cheque, the complainant has failed to prove that he is payee or holder of the cheque. In view thereof, the presumption u/s 138 of the N.I. Act is not available to the complainant.
7. In the present case, the complainant has failed to prove that the disputed cheque was issued towards consideration. The rebuttal presumption u/s 139 operates only in favour of payee or holder in due course, but not in favour of a person who without consideration became holder of the cheque.
8. It is worthy to note that in order to maintain the complaint u/s 138 of the N.I. Act, the cheque must be issued in discharge of any liability. It includes any kind of liability of the drawer and not any others liability, unless the payee, drawer or original debtor enter into an agreement to that effect. Thus, the complainant has failed to prove that the cheque was issued towards any liability. The complainant has failed to establish that the accused are under any existing liability and the disputed cheque was issued by the accused towards discharge of existing liability. It is also not proved ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:18:38 ::: CRI.APPEAL.113.06 6 that the cheque was dishonoured for the reason "exceeds arrangement". The complainant has failed to prove the essential ingredients of Section 138 of the N.I. Act. I do not find any illegality or perversity in the judgment passed by the learned trial Court.
9. Thus, the learned trial Judge has rightly come to the conclusion that the complainant failed to prove his case beyond reasonable doubt.
10. 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, 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 01:18:38 :::