Bombay High Court
Vithal @ Vithoba Gorakh Shinde vs Sangram Narsing Panchal on 24 November, 2011
Bench: Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 475 OF 2000
VITHAL @ VITHOBA GORAKH SHINDE
age 33 years, occ. Business,
r/o c/o Keval Electronics, Barshi Road,
Latur. APPELLANT
[orig. complainant.]
VERSUS
SANGRAM NARSING PANCHAL
age major, occ. Business,
r/o near Bank of Maharashtra,
Branch MIDC, Barshi Road, Latur. RESPONDENT
[orig. accused.]
...
Advocate for Petitioners : Mr. P R Tandale
Mr. V V Tamke Adv. For R/sole
...
CORAM : SHRIHARI P. DAVARE, J.
Dated: November 24, 2011
...
ORAL JUDGMENT
1. Heard learned respective counsel for the parties.
2. This is an appeal preferred by the appellant (original
complainant) challenging the judgment and order dated 21.10.2000,
rendered by learned 3rd Jt. Judicial Magistrate First Class, Latur in
STCC No.5427/1997, thereby acquitting the respondent/original
accused for the offence p/u/s 138 of Negotiable Instruments Act. (The
parties herein after are referred to as per their original status i.e.
complainant and accused).
3. The factual matrix of the case are as follows :-
It is the case of the complainant that he carries on
business of electronics under the name and style as Keval Electronics
near Water Tank, Barshi Road, Latur whereas accused is doing
business of preparation of furniture work under the name and style
of Suvarna Furnitures near Bank of Maharashtra, MIDC Branch,
Barshi Road, Latur. The complainant intended to install furniture in
his shop and asked the accused to prepare furniture. Accused also
expressed his willingness to prepare the furniture for the
complainant. Accordingly, the complainant entrusted the work of
preparing furniture for his shop to accused. In pursuance of the said
contract, accused asked the complainant to advance amount of Rs.
35,000/- and it was agreed between them that furniture work would
be completed at about Diwali 1996. Accordingly, relying upon the
promise of the accused, complainant advanced him cash of Rs.
35,000/- however, accused did not commence with the work of
furniture. Accused also repeatedly promised to commence with the
work but did not start the same. Ultimately the complainant found
that accused is not interested in preparing furniture for his shop.
Hence, he requested accused to repay the amount of Rs.35,000/- to
him. However, accused avoided for the same but ultimately on
7.11.1997, the accused issued cheque for Rs.35,000/- dated
25.11.1997 to the complainant towards the repayment of the said
amount. The complainant presented said cheque for encashment
purpose, but, said cheque was dishonoured and returned unpaid with
the cheque return memo dated 26.11.1997 bearing endorsement
"Account Closed".
4. In the meantime, the accused issued a notice through
Advocate namely G.B.Chavan on 14.11.1997. The complainant
replied to the said notice on 26.11.1997. Moreover, the complainant
also issued a statutory notice to accused on 26.11.1997 and called
upon the accused to make the payment of said cheque amount.
Accused was duly served with the said notice, but, inspite of receipt
of said notice, accused failed to make the payment of cheque amount
to the complainant. Hence, from the date of the receipt of the notice,
complainant filed complaint against the accused under section 138 of
Negotiable instruments Act (herein after referred to as N.I.Act for
short) within the requisite period before 3rd J.M.F.C., Latur. Process
came to be issued against the accused u/s 138 of N.I.Act.
Accordingly, accused appeared therein and pleaded not guilty and
claimed to be tried.
5. To substantiate the case of the complainant, the
complainant examined three witnesses i.e. complainant Vitthal
Gorakh Shinde himself as CW 1 , Arvind Jondhale Bank Officer CW
2 and C.W.3 Dilip Garje where as accused neither examined himself
nor examined any defence witness, but put forth his defence through
the cross examination of the complainant and his witnesses and also
through the statement recorded u/s 313 of Code of Civil Procedure.
The defence of the accused is that complainant obtained two blank
cheques from the accused, taking disadvantage of his position,
bearing signature of the accused but same were mis-used by him and
filed false case against the accused.
6. After considering the oral and documentary evidence
adduced/produced by the prosecution and also considering the
defence put forth by the accused, and also after considering rival
submissions advanced by the parties, learned trial Court came to the
conclusion that cheque in question was not issued towards discharge
of legal enforceable debt/liability and consequently acquitted the
accused for the offence p/u/s 138 of N.I.Act. Being aggrieved and
dis-satisfied by the said judgment and order, the appellant i.e. original
complainant has preferred present appeal assailing the same.
7. I have perused the impugned judgment and order as well
as perused Record and proceedings with the assistance of learned
counsel for the parties. AT the outset, the complainant adduced oral
evidence by examining himself as CW 1 and also examined other two
witnesses namely Arvind Jondhale as CW 2 Bank Officer and Dilip
Garje i.e. witness to the transaction as CW 3 as well as produced
documentary evidence and cheque in question for Rs.35,000/- drawn
on Bank of Baroda dated 25.11.1997 cheque no.657988 is produced
at Exh.18, bank return memo at Exh.19 dated 25.11.1997 bearing
endorsement 'account closed' Exh.19, copy of statutory notice dated
26.11.1997 sent by complainant to the accused at Exh.20, registration
receipt thereof at Exh.21, registered postal acknowledgment thereof
at Exh.22, copy of the notice dated 14.11.1997 sent by advocate for
the accused to the complainant and witness Dilip Garje Exh.24 and
copy of the reply dated 26.11.1997 and copy of reply notice dated
26.11.1997 sent by Advocate for the accused to the complainant's
advocate dated 2.12.1997 Exh.23.
8. Keeping in mind the aforesaid documentary evidence
adduced/produced by the parties and coming to the oral evidence
adduced by the complainant, wherein complainant namely Vitthal
Gorakh Shinde examined himself and stated that he negotiated with
the accused in respect of preparation of furniture and as quoted by the
accused, he handed over amount of Rs.35,000/- to him for
preparation of furniture in presence of his friend witness Dilip Garje.
Thereupon, the accused assured to prepare the furniture within a
period of 15 days however, the accused did not comply with the said
assurance. Hence, the complainant demanded said amount from him
and accused also assured to repay the said amount. Accordingly, the
accused issued cheque for Rs.35,000/- drawn on Bank of Baroda, on
7.11.1997 and asked the complainant not to deposit said cheque for
about 8-10 days. Thereafter, the complainant presented said cheque
for encashment purpose on 25.11.1997. however, the Bank Manager
informed that the account was closed on the same day. Moreover,
accused also gave notice dated 14.11.1997 to the complainant. The
complainant sent reply to the said notice as well as complainant
issued statutory notice to the accused through his Advocate.
Complainant identified said cheque and signature of the accused
thereon at Exh.18 as well as memo received alongwith said cheque
from the bank which is marked at Exh.19. He also identified the
signature of his advocate on notice Exh.20. He also produced postal
acknowledgment at Exh.20 and 22. He further produced reply given
by the accused at Exh.23 and copy of notice at Exh.24. He further
stated that inspite of receipt of the notice by the accused, he did not
repay the cheque amount.
9. During the cross examination, he admitted that he
neither gave any amount to the accused nor took any amount from
him earlier. He also admitted that he does not keep any account in
his shop, although monthly turnover of his shop is around Rs.
25,000/-. He also stated that he gave amount of Rs.35,000/- to
accused in his shop and his friend Mr. Garje was present at that time.
However, although accused assured to complete the work of furniture
within four months, he failed therein. He further stated that after
repeated requests, accused gave cheque in question to the
complainant in his shop and signed thereon in his presence and his
friend Garje was present at that time. He also admitted that accused
gave him only one cheque and not two cheques. Accused gave
suggestion to the complainant that accused gave two blank cheques
to the complainant, but same was denied by him. He admitted that
accused gave him notice dated 14.11.1997. He further stated that
cheque No.725350 dated 23.3.1997 was issued towards earlier
transaction. It was also suggested to him that out of the amount of
Rs.20,000/- accused is liable to pay Rs.2,000/- but same was denied
by him. Suggestion also was given to him that accused had come to
pay Rs.2,000/- but since the complainant refused to acknowledge the
same in writing hence, he returned back. It was also suggested that,
the complainant demanded Rs.42,000/- to the accused including the
interest, but same was denied by him. It was further suggested to him
that the complainant used blank cheques and put amount of Rs.
35,000/- on one cheque and amount of Rs.7,000/- on another cheque
and presented the same. It was further suggested to him that
complainant filed false case against accused to extract more money
from him, but same was denied by him.
10. Accordingly, complainant stated in his deposition that he
gave amount of Rs.35,000/- to the accused in his shop. Thereafter,
accused gave cheque of Rs.35,000/- to the complainant in his shop,
since he was unable to prepare furniture within the prescribed period
and said cheque was signed by the accused in presence of the
complainant and his friend Mr. Garje. Moreover, accused also put
up his case to the complainant through his cross examination that
accused gave two blank cheques to the complainant, and complainant
used same cheques by putting amount of Rs.35,000/- on one cheque
and amount of Rs.7,000/- on another cheque and presented the same
for encashment purpose, but same was denied by the complainant.
Complainant also admitted that there was no money transaction
between the complainant and accused earlier and complainant never
gave any amount to the accused, earlier.
11. That takes me to the deposition of CW 2 Dilip Garje
wherein he stated that he knows the complainant and accused and
accused carry on the business of furniture. Complainant had given
contract of preparation of furniture to the accused and also gave Rs.
35,000/- to him, in Diwali 1996. However, accused did not prepare
the same Hence, complainant demanded said amount back.
Thereupon accused gave cheque of Rs.35,000/- to the complainant on
7.11.1997 and 25.11.1997. He also stated that he identified said
cheque bearing signature of the accused thereon, drawn on Bank of
Baroda. Complainant presented said cheques for encashment
purpose on 25.11.1997 but same was dishonoured and returned
unpaid with bank return memo. During cross examination, he stated
that accused did not do work of the complainant for 7-8 months
although receipt of money. He further stated that accused gave
cheque in question to the complainant in his shop and they three were
present at that time.
ig He further stated that accused already had
brought written cheque and signed on the reverse side thereof. He
also stated that he saw signature of the accused for the first time.
12. Accused put up his case and suggested to said witness
that he gave amount of Rs.20,000/- to the accused and obtained blank
cheques from the accused and demanded Rs.42,000/- towards the
amount of Rs.20,000/- interest rate @ 10% pa. but same was denied
by him. It was also suggested to him that accused offered to pay Rs.
2,000/- and in lieu thereof asked in writing but said witness refused
therefor, but same was denied by him. Accused also suggested to
him that he carries on business of money lending, but same was
denied by him. It was further suggested to him that he was deposing
falsely at the instance of the complainant but same was denied by
him.
13. Accordingly, accused put up his case categorically to the
said witness in the cross examination in respect of obtaining two
blank cheques from him and misuse thereof but same was denied by
the said witness.
14. That takes me to the deposition of CW 3 Arvind
Jondhale i.e. the Bank Officer, wherein he stated that 'New Suvarna
Wood Furniture 'has account in the bank and Sangram i.e. accused is
operating said account as its proprietor. He further stated that cheuqe
no.657988 has been sent to his bank through Latur District Central
Co-operative Bank. The account was closed on 25.11.1997 and
cheque was dis-honored and accordingly, cheque was returned to
L.D.C.C. Bank along with memo Exh.19. He further stated that as
per record of xerox copies which was brought by him, the cheque
Exh.18 does not bear signature of accused i.e. Sangram Panchal. He
also brought with him certified account extract of accused. He
further stated that cheque Exh.18 has not been sent through any bank,
but it was presented on the bank counter. He further stated that
memo Exh.19 was given at the counter and not to the Bank. Cheque
was returned as account was closed. During the cross examination,
he stated that he brought with him certified copies of original.
Account was closed on behalf of bank as there was no sufficient
balance even to satisfy periodical service charges. He also stated
that Exh.18 is the bearer cheque.
15. Accordingly, evidence of CW 3 Arvind Jondhale reflects
that cheque Exh.18 does not bear signature of the accused and he
confirmed the same from the record brought by him, alongwith him.
He also stated that cheque Exh.18 was presented across the counter
and not through the clearing and memo Exh.19 was given across the
counter.
16. On the background of aforesaid oral and documentary
evidence, learned counsel for the complainant canvassed that cheque
in question was signed by the accused and it bears the signature and
accused handed over the said cheque to the complainant in the shop
of the complainant towards repayment of the amount of Rs.35,000/-
given by the complainant to the accused for preparation of furniture
since he failed to prepare said furniture and his contention has been
supported by the witness Garje. It is also canvassed by the learned
counsel for the complainant that complainant has adduced and
produced oral as well as documentary evidence on record, as
mentioned herein above and presumption under section 118 (a) and
139 of the N.I.Act is in favour of the complainant. It is categorically
argued by the learned counsel for the complainant that accused failed
to rebut said presumption. It is further submitted by learned counsel
for the complainant that there existed legally enforceable
debt/liability against the accused and accused issued cheque in
question towards legally enforceable debt/liability, partly or in whole.
It is further canvassed that complainant has complied with necessary
requisite compliances as contemplated under section 138 to 142 of
N.I.Act. Hence, learned counsel for the appellant urged that present
appeal be allowed and impugned judgment and order of acquittal be
quashed and set aside and accused be convicted for the offence p/u/s
138 of N.I.Act. Learned counsel for the complainant also argued that
the cheque return memo Exh.19 discloses that cheque in question was
returned due to closure of the account and reason given for return of
the said cheque comes under section 138 and 142 of N.I.Act and
therefore, accused is guilty under section 138 of N.I.Act.
17. Learned counsel for the accused countered the said
argument and submitted that although, initial presumption under
section 118 (a) and 139 of N.I.Act has been raised in favour of the
complainant, said presumption is rebutable under section 139 of
N.I.Act. In the said context, learned counsel for the accused pointed
out that the accused has put forth the specific defence that he had
obtained some loan from the complainant which has repaid to the
complainant and blank cheques were obtained by the complainant
from accused at the time of said loan and complainant had misused
the said blank cheques and filed false case against the accused.
Learned counsel asserted that the accused has put forth his case to the
complainant and his witnesses through their respective cross
examinations.
18. Moreover, the accused has categorically stated in his
statement recorded under section 313 of Cr.p.C. that he had paid Rs.
16,000/- to complainant and blank cheque was given to the
complainant. He has demanded more amount. Learned counsel also
invited my attention towards the notice dated 14.11.1997 issued by
the accused to the complainant and his witness Garje, which reflects
that at the request of accused, amount of Rs.20,000/- was given by
witness Garje through the complainant to the accused for his business
of furniture and at that time, taking disadvantage of the necessity of
the accused, two blank cheques drawn on bank of Baroda were
obtained from the accused on 16.12.1996 alongwith a blank bond of
Rs.50/- obtaining signature of the accused thereon. It is also stated in
the said notice that amount of Rs.18,000/- was repaid by accused as
stated therein and accused offered to pay balance amount of Rs.
2,000/- and requested receipt of full and final payment in writing on
10.11.1997 but the complainant and witness Garje gave evasive
replies and hence, accused declined to pay said amount of Rs.2,000/-
and expressed his readiness and willingness to pay said amount after
receipt of the writing towards full and final receipt of the amount.
19. Moreover, learned counsel for the accused pointed out
from the evidence of complainant's witness CW 2 Arvind Jondhale
that he categorically stated that cheque in question does not bear
signature of accused namely Sangram and he confirmed same from
the xerox copy which were brought by him in the Court on the said
date. Accordingly, learned counsel for accused canvassed that
accused has rebutted the presumption raised against him under
section 139 of N.I.Act on preponderance of probability and therefore,
burden was shifted upon the complainant to prove and establish
beyond reasonable doubt that there existed legally enforceable
debt/liability and cheque in question was issued by the accused
towards discharge of legally enforceable debt/liability. It is further
submitted that complainant has not produced any cogent evidence in
that respect. Hence, learned counsel submitted that learned trial court
acquitted the accused rightly and further submitted that the view
adopted by learned trial court while acquitting the accused after
analyzing and assessing the record is a possible view and no
interference therein is called for in the present appeal and urged that
present appeal be dismissed.
20. I have perused oral and documentary evidence
adduced/produced by the complainant and also considering the
defence put forth by the accused and submissions advanced by the
learned counsel for the parties anxiously, at the outset, considering
the oral and documentary evidence adduced/produced by the
complainant and more particularly, considering the cheque in
question Exh.18 and bank return memo and statutory demand notice
dated 26.11.1997 sent by the complainant to the accused and
registration thereof, initial presumption has been raised in favour of
the complainant under section 118 (a) and 139 of N.I.Act that the
accused issued cheque in question to the complainant towards
discharge of debt/liability, partly or in whole. Hence, it was
incumbent upon the accused to discharge said presumption which is
reversible under section 139 of N.I.Act and test required therefor is
on preponderance of probability.
21. In the said context, the accused has raised defence that
he had obtained some loan from the complainant which he had repaid
to him but blank cheques were obtained from the accused at that time
and complainant mis-used said cheques and filed false case against
the accused. In the light of the said defence, the accused sent notice
to the complainant and witness Garje on 14.11.1997 and categorically
put forth his case therein. In fact, said notice was issued by the
accused to the complainant prior to the date of cheque since date of
the cheque is 25.11.1997 and prior dishonor thereof and date of the
notice is 14.11.1997.
22. Keeping in mind said defence of the accused and coming
to the oral evidence adduced by the complainant, it is significant to
note that accused has put forth his defence through cross examination
of the complainant himself i.e. Vithoba Shinde and his witness Garje
and Jondhale as discussed herein above. Moreover, pertinently,
complainant's witness Mr. Arvind Jondhale has categorically stated in
his deposition that cheque in question Exh.18 does not bear signature
of accused namely Sangram and he confirmed the same from the
xerox copy of record which was brought by him in the Court. It has
also come in the evidence that accused did not close his account, but
it was closed by the bank itself on the very day i.e. on 25.11.1997
since there was no balance for debiting the service charges. Hence,
considering all the said aspects and defence of the accused which was
put forth by him through cross examination of the complainant's
witnesses as well as through his statement recorded under section 313
of Cr.P.C. and more particularly, categorical statement made by CW 2
Arvind that cheque in question does not bear signature of the
accused, it is apparent that defence put forth by the accused appears
to be probable and consequently, accused has rebutted the
presumption under section 139 of N.I.Act, on the test of
preponderance of probability.
23. In this scenario, it is incumbent upon the complainant to
prove and establish beyond reasonable doubt that there existed
legally enforceable debt/liability and cheque in question was issued
by the accused to the complainant towards discharge of legally
enforceable debt/liability, partly or in whole. However, in the said
context, complainant himself has categorically admitted in his
deposition that there was no money transaction between the
complainant and accused earlier. Moreover, testimony of the
complainant stating that he paid amount of Rs.35,000/- to the accused
towards preparation of furniture, appears to be doubtful since
considering the case put forth by the accused to the complainant
through his cross examination that there appears to be some other
transaction of loan of Rs.20,000/-, allegedly given by witness Garje
to the accused through complainant which appears to have been
repaid to the extent of Rs.18,000/- and accused has to repay balance
amount of Rs.2,000/- on issuance of receipt of full and final payment
which appears to have been denied by them and accused still was
ready and willing to pay amount of Rs.2,000/- to the complainant and
witness Garje as stated in the notice dated 14.11.1997. Besides,
witness Garje is appears to be friend of complainant, which has been
admitted by him in his testimony and pertinently, notice dated
14.11.1997 issued by accused to both of them i.e. complainant and
witness Garje, possibility of deposing CW 3 Garje in favour of
complainant to help him cannot be ruled out.
24. Apart from that, the complainant has not produced any
cogent evidence to prove and establish that he handed over the
amount of Rs.35,000/- to the accused and no writing has been
produced by the complainant in that respect and testimony of alleged
witness Garje is under doldrums as mentioned herein above.
25. Hence, it is apparently clear that the complainant has failed
to prove and establish beyond reasonable doubt that there existed legally
enforceable debt/liability against the accused on the date of issuance of
cheque in question, and further complainant failed to prove and establish
beyond reasonable doubt that accused issued cheque in question to the
complainant towards discharge of legally enforceable debt/liability and
hence, it is further apparently clear that complainant has failed to
discharge the said burden beyond reasonable doubt, which was rebutted
as mentioned herein above and therefore, learned trial court acquitted the
accused rightly for the offence punishable under section 138 of N.I.Act.
26. In the circumstances, after scrutinizing and analyzing the
evidence on record, the view adopted by learned trial court while
acquitting the accused is a possible view and said view does not appear to
be perverse. Moreover, the reasoning adopted by the learned trial court
while acquitting the accused also cannot be faulted with, and hence, no
interference therein is called for in the Appellate jurisdiction and
therefore, present appeal fails.
27. In the result, present appeal which is sans merits, stands
dismissed. R & P be sent back to the concerned Court.
(SHRIHARI P. DAVARE)
JUDGE
...
aaa/475.00
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.475/2000
DATE OF DECISION : 24-11-2011
FOR APPROVAL AND SIGNATURE :
THE HON'BLE SHRI JUSTICE SHRIHARI P. DAVARE.
1. Whether Reporters of Local Papers may
be permitted to see the judgment ?
ig ...Yes..
2. To be referred to the Reporter or not ? ..Yes/No..
3. Whether His Lordship wishes to see the
fair copy of the judgment ? ..No..
4. Whether this case involves a substantial
question of law as to interpretation of the
Constitution of India, 1950 or any order
made thereunder ? ..No..
5. Whether it is to be circulated to the
Civil Judges ? ..No..
6. Whether the case involves an important
question of law and whether a copy of
the judgment should be sent to Nagpur,
Bombay and Goa offices ? ..No..
( Mrs. Anuja A. Ankush )
P.A.to the Hon'ble Judge. ...
