The Karad Urban Co Operative Bank ... vs Sunil Laxman Dalvi And Anr
2015 Latest Caselaw 632 Bom

                                      11-APPEAL-920-2013-APPA-472-2013-1295-2012-J.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                         CRIMINAL APPELLATE JURISDICTION




                                                    
                        CRIMINAL APPEAL NO.920 OF 2013
                                     WITH
                      CRIMINAL APPLICATION NO.472 OF 2013
                                      IN




                                                   
                        CRIMINAL APPEAL NO.920 OF 2013

     THE KARAD URBAN CO-OPERATIVE BANK  )
     LIMITED                            )...APPELLANT




                                         
              V/s.           
     SUNIL LAXMAN DALVI AND ANR.                             )...RESPONDENTS
                            
     Shri   Shekhar   Jagtap   i/b.   J.Shekhar   &   Co.,   Advocate   for   the 
     Appellant/Applicant.
      


     Smt.M.R.Tidke, APP for the Respondent - State.
   



                                   CORAM      :      ABHAY M. THIPSAY, J.

                                   DATE       :      15th DECEMBER 2015.

     ORAL JUDGMENT :


     1                The appellant is a co-operative  bank.   It had filed a 

complaint against respondent no.1 herein alleging commission of

an offence punishable under Section 138 of the Negotiable

Instruments Act (N.I.Act). The Judicial Magistrate First Class,

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Karad, after holding a trial, held respondent no.1 not guilty and

passed an order of acquittal. Being aggrieved by the said order of

acquittal, the appellant has, after obtaining special leave of this

court, filed the present appeal.

2 During the pendency of the appeal, the appellant has

also filed an application praying that additional evidence, as

contemplated under Section 391 of the Code of Criminal

Procedure (Code), be directed to be taken. It was decided that

this application for a direction to take additional evidence, be also

considered along with the appeal.

3 Respondent No.1 did not remain present at the time of

final hearing of the appeal, inspite of notice, and inspite of

granting him repeated opportunities to be present. The appeal, as

well as the application for further evidence to be taken is,

therefore, being decided, after hearing the learned counsel for the

appellant and the learned APP; and after going through the

relevant record and proceedings.

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4 I have heard Mr.Shekhar Jagtap, the learned counsel for

the appellant. With his assistance, I have gone through the

impugned judgment, the complaint, and the notes of evidence

adduced during the trial, which are annexed to the appeal memo.

5 For the sake of convenience and clarity, the appellant

shall hereinafter be referred to as "the complainant" and respondent

no.1 as "the accused."

6 The case of the complainant was that, in repayment of

the loan taken by the accused from the complainant bank, the

accused had issued a cheque in the sum of Rs.5 Lac, which was

dishonoured, and that, inspite of making a demand for the amount

of the said cheque, the same was not paid.

7 One Hindurao Kumbhar, authorized Officer of the

complainant bank, was examined as a witness during the trial. No

other witness was examined by or on behalf of the complainant. The

accused also did not examine himself on oath or lead any evidence

in defence.

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8 The order of acquittal was passed by the learned

Magistrate mainly on two grounds. The Magistrate was of the

view, firstly, that the authority of the said Hindurao Kumbhar to

file a complaint on behalf of the complainant bank, was not

satisfactorily proved. He was of the view that since the complaint

had not been filed by a person duly authorized by the payee i.e.

the complainant bank, the complaint was not maintainable.

Secondly, the Magistrate held that, that the cheque had been

issued in discharge of a legally enforceable debt or other liability,

had also not been proved.

9 The learned counsel for the appellant submitted that,

that the complaint had not been filed by an authorized officer or

person, was not correct. He pointed out that the resolution passed

by the complainant bank authorizing the said Hindurao Kumbhar

was filed before the Magistrate, and that, the resolution clearly

authorized the said Hindurao Kumbhar to file a complaint on

behalf of the complainant bank.

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10 This submission of the learned counsel for the

applicant appears to be proper. The Magistrate's reasoning that

the resolution had not been proved because the same had been

passed in the absence of the said Hindurao Kumbhar, and that, he

had no personal knowledge about the said resolution is not sound.

The Magistrate's view that some of the persons who passed the

resolution ought to have been examined, is not correct.

11 However, the other finding recorded by the Magistrate

- i.e., that 'the complainant had failed to prove that the cheque in

question was issued in discharge of a legally enforceable debt or

other liability' appears to be correct.

12 Interestingly, the complaint merely states that the

accused had issued the cheque in repayment of the loan without

giving any particulars of the loan. The complaint does not give any

details as to when the amount of loan was disbursed. It does not

even give the amount of loan that was given to the accused. In the

affidavit of his evidence in lieu of examination-in-chief also, the

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witness for the complainant, did not give these details. On the

contrary, he admitted that he did not know about these details.

13 In the cross-examination of the complainant's witness,

he admitted that, usually, when a cheque is given for repayment of

a loan, the (loan) account number of the debtor is written on the

reverse of the cheque. He admitted that, in the instant case, such

account number was not written. Inspite of repeatedly being

questioned in the cross-examination, he could not give the loan

account number of the accused, while admitting that such loan

account number ought to be there, if the accused had been given a

loan.

14 In the cross-examination of the complainant's witness,

he admitted that proceedings had been filed against the accused

in the Co-operative court and some award had been obtained from

the Co-operative court. He also admitted that the accused had

deposited some amount in the loan account. He, however, was

unable to state how much amount had been deposited by the

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accused in the loan account and / or how much loan amount had

already been satisfied on 25th February 2005, i.e., the date on

which the cheque was supposedly issued. The witness also stated

that he did not have any record or account to show how much

amount was due and payable by the accused to the complainant on

25th February 2005.

The accused had taken a defence that he had

previously obtained loan from the complainant bank which had

been repaid. These facts were admitted by the complainant's

witness in his cross-examination. The case of the accused was

that, a cheque given by him to the complainant at that time, as

and by way of security, had been misused, and the accused was

wrongly being prosecuted with respect to an offence punishable

under Section 138 of the N.I.Act.

16 In light of the fact that the complainant had

scrupulously avoided giving any details, whatsoever, of the loan

allegedly obtained by the accused, and the admission of the

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complainant's witness that he did not have such details, the

defence of the accused was certainly plausible. The Magistrate's

conclusion, that the accused had successfully rebutted the

presumption created by Section 139 of the N.I.Act, was proper

and legal.

17 The question that now remains is, whether the

appellant should now be permitted to adduce further evidence as

contemplated under Section 391 of the Code. I have specifically

heard the learned counsel for the appellant on this aspect.

Interestingly, the new evidence that is sought to be adduced is the

award passed by the Co-operative court. Inspite of specifically

questioning, the learned counsel for the appellant did not say that he

wanted to produce the statement of the loan account of the accused

by way of additional evidence.

18 The award would show the opinion of the Co-

operative court. The decision rendered by the Co-operative court

would not be admissible or even relevant in the proceedings that

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were before the Magistrate. The law regarding the relevancy of

judgments delivered by the courts is found in Sections 40 to 44 of

the Evidence Act. The judgment delivered by the Co-operative

court or the award passed by it is not even relevant in the context

of the proceedings that were before the Magistrate.

19 As such, I do not find any merit in the application for

permitting the appellant to adduce further evidence in the matter.

20 The judgment and order of acquittal, as passed by the

Magistrate, is proper and legal. There is no merit in the appeal.

21 The appeal, as well as Criminal Application No.472 of

2013, are both dismissed.

                                       (ABHAY M. THIPSAY, J.)





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CERTIFICATE

Certified to be true and correct copy of the original

signed Judgment /Order.

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