Bhaichand Hirachand Raisoni vs Shabbirsha Shakursha
2016 Latest Caselaw 1748 Bom

                                                        Criminal Appeal No.871/2005
                                              1




                                                                               
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                       
                            CRIMINAL APPEAL NO.871 OF 2005




                                                      
     Bhaichand Hirachand Raisoni,
     Gramin Bigar Sheti Sahakari
     Pat Sanstha Ltd., Talegaon,
     Tq. Jamner, District Jalgaon
     through Gajanan Pandurang Tayade




                                         
     Age 25 years, Occ. Service,
     R/o Nagar Khana, Jamner,
     District Jalgaon                     ...   APPELLANT
                                    (Original Complainant)
            VERSUS
                            
     Shabbirsha Shakursha
     Age 36 years, Occu. Business/ Agril.
     R/o Islampura, Shendurni,
     Tq. Jamner, District Jalgaon                      ...   RESPONDENT
      


                                                       (Original Accused)
   



                        .....
     Shri B.R. Warma, Advocate for appellant
     Shri S.P. Tiwari, Advocate for respondent
                        .....





                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       22nd April, 2016.

                      Date of reserving judgment : 12th April 2016





                      Date of pronouncing judgment : 22nd April 2016.


     JUDGMENT:

1. This appeal is by Pat Sanstha - original complainant

against the acquittal of respondent - accused.

Criminal Appeal No.871/2005

2. The appellant - complainant filed a private complaint

under Section 138 of the Negotiable Instruments Act against

respondent - accused (hereinafter referred to as 'accused')

contending that, the complainant Society had granted a loan of

Rs.43,456/- to the accused to purchase motorcycle. To

discharge the liability, accused had issued cheque of Rs.30,000/-

bearing No.796574 of Jalgaon District Central Cooperative Bank,

Shendurni on 19.6.2003. The cheque was presented to the Bank

and was returned on 21.6.2003 for insufficiency of funds. A

notice dated 27.6.2003 came to be issued, but returned back as

the accused did not claim the same.

3. In the trial Court, on behalf of the complainant,

evidence of one of its employees Gajanan Pandurang Tayade was

brought on record. He proved the dishonoured cheque and the

memorandum from the Bank Exh. 33 and Exh.34 regarding

dishonour. He also proved the notice Exh.35 and the sealed

envelope Exh.36-A with notice inside Exh.36-B. The trial Court,

after considering the evidence, acquitted the accused and thus,

this present appeal against acquittal.

Criminal Appeal No.871/2005

4. I have heard counsel for both sides. The learned

counsel for the appellant - complainant submitted that, the

complainant society was in the Banking business and the accused

had applied for loan to buy a motorcycle. As per the practice,

the amount was directly disbursed to the dealer. The counsel

submitted that, this is Banking procedure which was followed,

and the trial Court wrongly acquitted the accused because the

cheque of loan was issued by the society to Pagaria Auto Centre

instead of giving the money in the hand of the accused. It was

submitted that, the accused has not led any evidence in defence

and the cheque issued by the accused in favour of the

complainant was admittedly dishonoured and so the accused is

liable to be convicted.

5. Against this, the learned counsel for the respondent -

accused supported the judgment of the trial Court. It was

submitted that, there was no material to even show that loan

was handed over to the Pagaria Auto Centre. It was submitted

that, no relevant documents have been brought on record and

the trial Court rightly acquitted the accused.

6. I have gone through the complaint which was

Criminal Appeal No.871/2005

brought before the trial Court as well as the evidence. The

complainant is cooperative society claiming that it was giving

loan to people in its jurisdiction for agricultural as well as other

reasons also. The respondent - accused wanted to buy a

motorcycle of Bajaj Company and made request for loan to the

complainant. Loan of Rs.43,456/- was approved and accused

executed necessary documents. The complaint mentions that, in

the loan account on 19.6.2003 Rs.30,000/- was outstanding, for

which the accused issued the cheque No.796574. It is

mentioned that, the cheque got dishonoured on 21.6.2003.

7. In support of complaint as above, the evidence of

P.W.1 Gajanan was brought on record. The documents which

were proved are only :-

     (i)      Cheque - Exh. 32.

     (ii)     Memorandums from the Bank - Exh. 33 and 34.

     (iii)    Authority letter in favour of P.W.1 - Exh.31.





     (iv)     Registered notice dated 27.6.2003 - Exh.35, its envelope

Exh.36-A and notice, which was in envelope - Exh. 36-B.

8. The complainant did not bring on record documents

of the application of accused seeking loan. It did not bring on

Criminal Appeal No.871/2005

record extract of the loan account. The cross-examination of

P.W.1 shows that, witness admitted that the accused was

residing outside the territory of Talegaon. Evidence of P.W.1

shows :

"It is true to say that, owner of Anuj Auto is

member of our society. It is true to say that, he soldig two-wheeler motorcycle through complainant society."

9. In the further cross-examination, this P.W.1 stated

that, accused had made written requests for loan for purchasing

motorcycle. As mentioned, the document is not on record.

P.W.1 admitted that the Society passed resolution for granting

loan to accused. Even this document is not on record. The

witness further admitted that, "We paid loan to accused by D.D.

in name of Pagaria Auto Centre." No documents of purchasing of

D.D. i.e. Demand Draft is available nor any record to show that

the complainant deposited money with Pagaria Auto Centre on

behalf of accused so that Pagaria Auto Centre could transfer

motorcycle to the accused are brought on record. What is the

connection between Anuj Auto and Pagaria Auto Centre is also

not clear on record. The accused took a defence in the cross-

Criminal Appeal No.871/2005

examination of P.W.1 that he had not obtained any loan from the

Society. In fact, the complaint as was filed and the examination-

in-chief as was brought of P.W.1, was plain and simple that,

accused wanted to buy motorcycle and so amount was approved

and loan was given to the accused. Complaint or P.W.1 in

examination-in-chief never claimed that there was any Auto

Centre involved for disbursement of the loan. I agree with the

submission of the learned counsel for the complainant that in

commercial transactions and Banking system there are

procedures where, when loan is approved for purchase of vehicle,

the Banker, instead of handing over cash to the borrower,

directly deposits the amount on behalf of the borrower with the

Auto Centre or Auto Company and the vehicle is released by the

Auto Company in favour of the borrower. In such transaction,

Banker can claim that loan is liable to be repaid by borrower and

it would be legally enforceable debt. However, all this is required

to be proved. If the present complaint and evidence is seen, it

was only in cross-examination that it transpired that there were

Auto Centres involved. P.W.1 admitted, as mentioned, Demand

Draft was given to Pagaria Auto Centre. But then, where are the

documents ?

Criminal Appeal No.871/2005

10. In the trial Court record, when the matter was at the

stage of arguments, accused filed Exh. 40, trying to tender

affidavit, claiming that he had tried to transact with Anuj Auto,

for which he had issued three cheques including the present

deposited cheque, but had not received the motorcycle. The trial

Court rejected the application and the affidavit in that regard did

not come on record nor was tested. Subsequently, the accused

filed written notes of arguments raising similar points. The

substance remains that if the complainant had issued cheque to

Pagaria Auto Centre, it was possible for the complainant to bring

on record documents showing sale of motorcycle to the accused.

Absolutely no copies of documents of Registration Book, Tax

Book or Insurance of the vehicle are available though they could

have been brought on record if the transaction was as is claimed

by the complainant.

11. I have gone through the observations of the trial

Court. The trial Court has observed that the testimony of P.W.1

shows that loan was not given to the accused directly. It is

observed that, it was given to Pagaria Auto Centre and there is

nothing as to how such giving of loan to Pagaria Auto Centre was

for and on behalf of accused. The learned counsel for

Criminal Appeal No.871/2005

complainant attacked these observations, arguing that the trial

Court did not understand the Banking procedure. I find that,

although the trial Court has not said it in so many words, but the

trial Court observed that, there was no evidence on record to

show that accused received any amount from the complainant

Society. When the complainant itself did not bring on record

necessary documents and only the cross-examination showed

that the genesis of the transaction had been suppressed, fault

cannot be found with the finding of the trial Court that the

complainant failed to establish the guilt of the accused.

12. For reasons discussed above, I do not find any reason

to interfere with the findings recorded by the trial Court, holding

the accused as not guilty and acquitting the accused.

13. For such reasons, the appeal is dismissed.

(A.I.S. CHEEMA, J.)