1 apeal342of14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 342 OF 2014
Manoj s/o. Pralhad Madhwani, ......(DEAD)
aged about 45 years,
R/o. Shivaji Nagar Tumsar
(P.S. Tumsar) Dist. Bhandara
LR's of appellant
Yogesh S/o. Manoj Madhwani, ....(amendment carried
aged about 21 years, out as per Court's
Occupation : Business, order dated 2.4.2014)
R/o. Shivaji Nagar, Tumsar,
(P.S.Tumsar),
District Bhandara .... APPELLANT
Versus
1 Shri. Jagdish S/o. Khushal Wairagade,
Aged : Major, Occupation : Business,
R/o. Nehru-Vivekanand Nagar,
Tumsar (P.S.Tumsar) Dist. Bhandara
2 The State of Maharashtra,
through G.P. Nagpur. .... RESPONDENTS
______________________________________________________________
Mr. Krishna S. Motwani, counsel for the appellant.
None for respondent 1.
Mr. A.V. Palshikar, Addl. Public prosecutor for respondent 2.
______________________________________________________________
CORAM :ROHIT
B. DEO, J.
DATE :11.10. 2017 ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 01:53:53 ::: 2 apeal342of14 ORAL JUDGMENT :
Challenge is to the judgment and order of acquittal dated 12.4.2012 in Summary Criminal Case 746 of 2007 delivered by Judicial Magistrate First Class, Tumsar, by and under which, the respondent 1 (accused) is acquitted of offence punishable under section 138 of Negotiable Instruments Act, 1881.
2 The gist of the case of the complainant is that the accused was in need of money and requested hand loan of Rs. 50,000/- from the appellant (complainant) in the month of January 2007. Towards the refund of said hand loan, the accused issued cheque dated 24.5.2007. The complainant deposited the said cheque for encashment with Bhandara District Central Cooperative Bank Limited, Bhandara on 30.5.2007. The cheque was dishonoured, which information was given to the complainant by Bhandara District Central Cooperative Bank Limited vide memo of return Exhs. 25 and 26. The complainant issued registered notice dated 13.6.2007 seeking payment of the amount covered by the cheque. The postal envelope was returned with endorsement "unclaimed" on 28.6.2007. The complainant treated the said endorsement as deemed service and instituted the complaint under section 138 of Negotiable Instruments Act, 1881. ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 01:53:53 :::
3 apeal342of14 3 Evidence of the complainant is broadly consistent with the complaint. The accused examined himself and two others to
probabilize the defence. The defence of the accused is that he did not receive any amount from the complainant much less as a loan. The accused was a member of Voluntary Contribution Scheme managed by the complainant. A dispute arose between the complainant and the accused and the complainant misused a blank cheque which the accused, like other members of the scheme, had deposited with the complainant. The accused has deposed that at the relevant time an amount of Rs. 7 lakh was the available balance in the account. He has deposed that he did not receive notice nor did the postman make any attempt to serve the notice. The other witnesses examined on behalf of the accused have claimed to be members of the Voluntary Contribution Scheme and have deposed on similar lines.
4 The learned Magistrate has noted that there is absolutely no evidence on record to suggest that the cheque was presented to the State Bank of India on which the cheque was purportedly drawn. The return memos produced on record are issued by the Bhandara Central Cooperative Bank. Apart from the fact, that no employee of the said bank was examined to prove that the cheque was forwarded by Bhandara Central Cooperative Bank to State Bank of India, the return ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 01:53:53 ::: 4 apeal342of14 memo does not indicate that the memo is based on information received from State Bank of India.
5 The learned counsel for the appellant / complainant Shri. K.S. Motwani was serious in contending that the accused is acquitted on a technicality, I am not inclined to agree. In the context of the defence that amount of Rs. 7 lakh was available in the account of the accused, if there is no evidence whatsoever that the disputed cheque was indeed ultimately presented to State Bank of India for encashment, the very basic ingredient of an offence under section 138 of Negotiable Instruments Act is not made out. That apart, even de hors the said aspect, I find that the accused has probabilized the defence on the touchstone of preponderance of probabilities.
The view taken by the learned Magistrate is not perverse. The view is a possible view. I am not inclined to interfere in the judgment of acquittal in the absence of any perversity.
The appeal is without substance and is rejected.
JUDGE Belkhede ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 01:53:53 :::