judg. apeal 462.06.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 462 OF 2006
Central Urban Credit Cooperative Society Ltd.,
13, Bapu Nagar, Umrer Road, Nagpur,
through its Recovery Officer, Shri Khushal D. Zoting,
R/o.-Nagpur. .. APPELLANT
-v e r s u s-
1] The State of Maharashtra,
2] Kishor s/o Laxmanrao Kore,
aged about 47 years, R/o.-Plot No.49, Wanjari Nagar,
Nagpur. .. RESPONDENTS
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None for the appellant.
Mrs. Barabde, A.P.P. for State.
None for respondent no.2.
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CORAM: MRS. SWAPNA JOSHI, J.
DATED : 24th November, 2017 ORAL JUDGMENT This Appeal has been directed against the judgment and order dated 17-11-2005 delivered by the learned Judicial Magistrate First Class and Special Court of 138 cases, Nagpur in Sum. Criminal Complaint Case No.30 of 2005 (New)/Sum. Criminal Complaint Case No.258 of 2000 (Old), thereby the learned trial Judge had acquitted respondent no.2 (hereinafter will be referred as 'the accused') for the offence punishable under Section 138 of the Negotiable Instruments Act.
::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:18:36 :::judg. apeal 462.06.doc 2 2] I have heard Mrs. Barabde, the learned Additional Public Prosecutor for respondent no.1/State. The learned Counsels for the appellant (hereinafter will be referred as 'the original complainant') and respondent no.2 remained absent even on second calI. I have perused the entire evidence on record led by the prosecution and the judgment passed by the learned trial Judge.
3] The brief facts of the case are that :-
The appellant is a registered Cooperative Society and deals in its business of advancing loan on credit to its members. The accused is the Member of the said Society. The accused took a loan of Rs.25,000/- from the complainant society. He executed a promissory note and agreement to repay the loan amount i.e. monthly installments of Rs.3,750/-. It is the case of the original complainant that the accused was irregular in repayment of monthly installments of loan amount. In order to bring the loan in order, the accused issued a cheque bearing no. 624158 of Rs. 33,604/- of the Shikshak Sahakari Bank, Nagpur on 14-02-2000 in favour of the complainant Society. The original complainant presented the said cheque for its realization through its bank Parmatma Ek Sewak Nagrik Sahakari Bank Ltd. Nagpur on 14-02-2000. However, the said cheque was returned by the bank on 15-02-2000 with a cheque returned memo attached to it for the reason "insufficient funds". The complainant society served a notice upon the accused on 29-02-2000 calling upon to pay the amount of cheque within 15 days from the date of receipt of notice. As the accused avoided to receive the said notice, the notice was returned back to the original complainant by the postal authorities undelivered with postal endorsement "not claimed". The original complainant then lodged the complaint against the accused under section 138 r/w 142 of the N.I. Act. 4] The learned trial Judge framed the charge and conducted the trial. After recording the evidence, hearing both the ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:18:36 ::: judg. apeal 462.06.doc 3 sides, the accused was acquitted as aforesaid. 5] I have heard Mrs. Barabde, the learned Additional Public Prosecutor for respondent no.1/State. The learned Counsels for the appellant and respondent no.2 are remained absent even on second calI.
6] The original complainant relied upon his testimony. The original complainant has deposed as above. During the cross examination it was the specific defence of the accused that he had not obtained loan from the complainant society and he never issued the disputed cheque (Exhibit-31) in favour of the society. According to the accused, the disputed cheque does not bear his signature. In order to support his contention the accused examined handwriting expert Shri Sanjay Kotwal. In the testimony of handwriting expert, he has stated that he has obtained specialized training in the science of handwriting identification. In his examination-in-chief he deposed that he has examined the signature at Exhibit-31 i.e. the disputed cheque. He further stated that he has obtained the enlarged photograph of the signature and he has marked Exhibit-Q-1 on the enlarged photograph (Exhibit-43) and examined the signature of the accused on Exhibit-30 i.e. the agreement dated 12-06-1995. The handwriting expert examined and compared the said signatures (Exhibits-45 to 50) with the alleged signature of the accused on Exhibit-31 (Q-1) and opined that the signature on the cheque (Q-1) is not in the handwriting of the person who made the comparative signatures on the documents marked as K-1 to K-9. Thus, the handwriting expert has tallied the signature on the cheque with the comparative signatures of the accused and gave a specific opinion that the signatures of the accused which were comparative signatures did not tally with the signature on the disputed cheque. The said opinion of the handwriting expert makes amply clear that it was not the accused who has put his signature on the disputed ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:18:36 ::: judg. apeal 462.06.doc 4 cheque (Exhibit-31). Thus, the said fact indicates that the accused is not the author of the said cheque. The learned trial Judge has opined that the signatures on the disputed cheque do not tally with the comparative signatures of the accused and has rightly come to the conclusion that the disputed cheque does not bear the signature of the accused. Hence, it cannot be held that the disputed cheque was issued by the accused. Significantly, even with the naked eyes it can be seen that the signature on the disputed cheque do not tally with the comparative signatures of the accused. In view thereof, it can be safely said that the accused had not signed the cheque and he has not issued cheque of Rs. 33,640/- dated 14-02-2000. The original complainant has further failed to prove that the accused was under the liability and hence towards the discharge of the said liability has issued the disputed cheque. There is no cogent evidence of the original complainant on record to show that the accused had defaulted in repayment of loan installments and was under the liability to pay the loan amount.
7] Thus, the prosecution has failed to prove that the accused has issued the disputed cheque which was dishonoured. The learned trial Judge has rightly assessed the evidence on record and has come to the conclusion that the original complainant has failed to prove its case.
8] The learned trial Judge has appreciated the evidence in right perspective. There is no illegality or perversity noticed in the judgment delivered by the learned J.M.F.C., Nagpur. 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 a view taken by the lower Court, unless the view taken by the lower Court is illegal, perverse or against the principle of law.
9] There are no sufficient grounds made out by the ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:18:36 ::: judg. apeal 462.06.doc 5 appellant and respondent no.1/State to interfere with the impugned judgment and order. In these circumstances, the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE Deshmukh ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:18:36 :::