Bombay High Court
Kiskinda Bapu Kale vs Sau.Sushilabai Navnath Sawant on 26 April, 2016
Bench: A.I.S. Cheema
cra2160.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2160 OF 2014
Kiskinda Bapu Kale,
Age-39 years, Occu:Agri. &
Household, R/o-Kallamb,
Tq-Kallamb, Dist-Osmanabad.
...APPLICANT
(Orig. Complainant)
VERSUS
Sau. Sushilabai w/o Navnath Sawant,
Age-48 years, Occu:Agri.,
R/o-Kalpana Nagar, Kallamb,
Tq-Kallamb, Dist-Osmanabad.
...RESPONDENT
(Orig. Accused)
...
Mr.M.S. Karad Advocate with Mr. S.S.
Thombre Advocate for Applicant.
Mr.M.P. Tripathi Advocate for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE : 26TH APRIL, 2016
ORDER :
1. Learned counsel for the Applicant- original
complainant submits that this Appeal is against
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acquittal. According to him the offence under
Section 138 of the Negotiable Instruments Act,
1881 ("N.I. Act" for short) was clearly
established as the cheque issued by the
Respondent-accused when presented, bounced and the
Respondent should have been convicted. According
to the counsel, the reasonings recorded by the
trial Court for dismissal of the complaint were
not maintainable. It is stated that the document
Exhibit 25 was wrongly treated by the trial Court
as withdrawal slip and not cheque.
2. The learned counsel for the Respondent-
accused opposes and states that the reasonings
recorded by the trial Court were correct and the
acquittal was justified.
3. With the assistance of counsel for both
sides, I have gone through the contents of Exhibit
25 which the complainant wants to rely on as a
cheque. The document is of "Lokshradha Nagari
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Sahakari Patsanstha Ltd.". The printed wordings in
the document are as under:
LOKSHRADHA
DATE:..........
Not for bank cheak clearing
Name................ Pay to................
Rupees..............
Rs.....
A/C. NO.
A/C TYPE
LOKSHRADHA NAGARI
SHAKARI PATSANSTHA
LTD.
HEAD OFFICE SHIVAJI
COLLAGE ROAD, BARSHI-
413411
4. Admittedly it was an account with the
Patsanstha. As per Section 138 of the N.I. Act, a
cheque has to be drawn by a person on an account
maintained by him with the Banker for payment of
money to another. If such cheque is returned by
the "Bank" unpaid, the Section gets attracted.
Definition of cheque is given in Section 6 of the
N.I. Act. In this matter, I am not concerned with
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the explanations below the definition. The
relevant part of Definition of "Cheque" reads as
follows:-
"Cheque- A "cheque" is a bill of exchange
drawn on a specified banker and not expressed
to be payable otherwise than on demand and it
includes the electronic image of a truncated
cheque and a cheque in the electronic form."
.
It shows that cheque is a bill of
exchange. Now if Section 5 of the N.I. Act is
perused, it defines "bill of exchange" as under:
"5. Bill of exchange.- A "bill of exchange" is
an instrument in writing containing an
unconditional order, signed by the maker,
directing a certain person to pay a certain
sum of money only to, or to the order of, a
certain person or to the bearer of the
instrument.
A promise or order to pay is not
"conditional", within the meaning of this
section and section 4, by reason of the time
for payment of the amount or any installment
thereof being expressed to be on the lapse of
a certain period after the occurrence of a
specified event which, according to the
ordinary expectation of mankind, is certain to
happen, although the time of its happening may
be uncertain.
The sum payable may be "certain", within the
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meaning of this section and section 4,
although it includes future interest or is
payable at an indicated rate of exchange, or
is according to the course of exchange, and
although the instrument provides that, on
default of payment of an installment, the
balance unpaid shall become due.
The person to whom it is clear that the
direction is given or that payment is to be
made may be a "certain person", within the
meaning of this section and section 4,
although he is mis-named or designated by
description only."
5.
Keeping such definitions in view, one
comes across cheques which are used in the Banks
with wordings like:-
"
State Bank of .........
IFSC CODE:..............
Valid for 3 months from the
date of instrument
Date:
PAY................................................OR ORDER
RUPEES.................
Rs.
A/C. NO......................... Not Over Rs..........
Multi city Cheque............
..................
(Please sign above)"
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6. Provisions of the Banking Regulation Act,
1949 provide as to what is "banking", "banking
company" etc. Learned counsel for the Applicant is
unable to show that the Patsanstha is a Bank.
Similarly looking to the definition of "cheque"
and "bill of exchange", the document Exhibit 25
cannot be said to be a cheque and the trial Court
was right in its observation that it is not a
cheque. Trial Court observed that as per R.B.I.
guidelines, Patsanstha cannot issue cheque and it
has no right to do so and the document Exhibit 25
was withdrawal slip. If Exhibit 25 is perused, on
one side in fine printing it is mentioned that
"Not for bank cheak clearing". Apparently
Patsanstha which does not even know spelling of
"cheque" has issued some document to the depositor
for its internal functioning. That will not help
the complainant.
7. This Appeal is against acquittal and
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looking to the reasonings recorded by the trial
Court, it is possible view of the material which
was brought before the trial Court. There is no
reason to interfere in this Application so as to
grant leave against the acquittal or to admit the
Appeal.
8. For the afore-stated reasons, the
Application is rejected.
[A.I.S.CHEEMA, J.]
asb/APR16
