Bombay High Court
Sudam Chimaji Thorat vs Shashikant S. Darandale And Anr on 19 July, 2016
Bench: G. S. Kulkarni
pvr 1 alp273.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.273 OF 2015
Shri.Sudam Chimaji Thorat )
Age:52 yrs. Occ: Business, )
residing at 203, Vighnahar Co-op. Housing )
Society Ltd. , Godapdev Road, )
Mumbai - 400033. ).. Applicant
(Orig.Compltt)
vs
1. Mr.Shashikant S.Darandale
Proprietor of M/s.Sign Tech,
ig )
)
501, Neelkanth Corner, Sector No.2, )
Sanpada (E), Navi Mumbai-400705. )
2. State of Maharasahtra ).. Respondents
(Respt no.1/Ori.accused)
----
Mr.Kishor Bhatia, for the Applicant
Mr.A.S.Khandeparkar i/b. Mrs Mansi S.Bane, for Respondent no.1
Mrs.Rajashree V.Newton Addl.Public Prosecutor, for Respondent no.2.
---
CORAM: G.S.KULKARNI,J
th
JUDGMENT RESERVED ON: 7 July, 2016
th
JUDGMENT PRONOUNCED: 19 July,2016
Judgment : -
1. The Applicant /original complainant by this application
seeks leave to file an appeal under section 378 (4) of the Criminal
Procedure Code, 1973 against the judgment and order dated 30
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April 2015 passed by the learned Metropolitan Magistrate in Criminal
case No.15885/SS/2012 acquitting respondent no.1 of the offence
punishable under section 138 of the Negotiable Instruments Act.
2. The applicant's case before the trial Court was that in
the month of March 2009 the respondent no.1 - accused, had
approached the applicant for sale of his flat being Flat no.501,
Neelkanth Corner, Sector 2, Sanpada (East), Navi Mumbai, as
respondent no.1 was in need of urgent cash. Though the market price
of the said flat was Rs.40,00,000/- and the applicant was willing to
pay the entire consideration in cash, it was agreed that the
respondent no.1 would sell the flat at consideration of
Rs.36,00,000/-. This proposal of the Respondent no.1 was accepted
by the Applicant and the Applicant showed willingness to arrange for
cash. The Applicant paid in cash of Rs.30,50,000/ to Respondent
no.1 on 5 November 2009 in the presence of one Mr.Vinod Mahadik
and Mr.Sampath Shirole and the Respondent No.1 accepted and
acknowledged receipt of the said amount. The Respondent no.1 also
assured handing over of possession of the flat within one month after
the balance consideration of Rs.5,50,000/- was received. The
Applicant was willing to make payment of Rs.5,50,000/-. However,
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Respondent no.1 with malafide intentions changed his version and
did not complete the transaction. The Applicant therefore sought
return of the amount of Rs.30,50,000/- from Respondent no.1.
Respondent no.1 after lot of persuasion issued a cheque for
Rs.30,50,000/- on 27 July 2010 drawn on Bank of Maharashtra. The
respondent no.1 however requested the Applicant not to deposit the
said cheque. Further two more cheques of Rs.2,50,000/- and
Rs.1,50,000/- were handed over and again requested the applicant
not to deposit the said cheques. Finally, Respondent no.1 made a
payment of a part amount of Rs.15,50,000/- by cheque and cash, and
a document to that effect was prepared on a stamp paper of Rs.100/-
in the handwriting of respondent no.1 in the presence of two
witnesses namely one Mr.Vinod Mahadik and Mr.Dashrath Thorat,
confirming the said receipt. A photocopy of the said document was
handed over to the applicant and the original copy of the same was
retained by respondent no.1 with an understanding that the original
copy would be returned after making full and final payment.
Thereafter, for the balance amount respondent no.1 issued one
cheque bearing No.089794 of Rs.15,00,000/- dated 23 October 2012
drawn on Bank of Maharashtra, Sion Branch in favour of the
applicant.This cheque was deposited by the applicant with his
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bankers "Satara Sahakari Bank, Ghodapdeo Branch on 23 October
2012.The same was dishonoured with an endorsement "funds
insufficient" and was returned with bank memo dated 27 October
2012. A legal notice dated 1 st November 2012 was addressed to the
respondent no.1 and forwarded by registered post calling upon to
make the payment which Respondent No.1 did not hand over. The
applicant lodged a complaint in question prosecuting the respondent
no.1 under section 138 of the Negotiable Instruments Act.
Respondent No.1 appeared before the trial court in pursuance of a
process being issued and pleaded not guilty.
3. Before the trial Court in support of the complaint, the
applicant examined himself and one Mr.Vinod Ganpat Mahadik (PW
2) and Mr.Sampat Balasahab Shirole (PW 3). The respondent no.1 in
defence examined himself (DW 1) and one Mr.Nitin Chandrakant
Oza, Branch Manager of Bank of Maharashtra Sion Branch (DW2 ).
4. As can be seen from the evidence of Respondent No.1,
his defence is that the Applicant was running a money lending
business without licence. During the period 2006 to 2009,
Respondent No.1 had taken amounts from the Applicant for about 6
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to 7 times. To give such money, the Applicant used to take blank
signed cheques and blank stamp papers from Respondent No.1. Even
on repayment of money, the Applicant used to avoid returning the
blank signed cheques and the blank signed stamp papers. About 3 to
4 such stamp papers and 6 to 7 cheques signed by Respondent No.1
were lying with the Applicant despite repayment of entire money
taken from the Applicant with interest. As regards the cheque in
question, the case of Respondent No.1 is that there was no lawful
debt or liability of Respondent No.1 towards the Applicant. The
entire story as stated in the complaint was false and concocted.
There was no transaction whatsoever to sell the flat of Respondent
No.1 to the Applicant. Respondent No.1 in his deposition ('Exhibit
58) has stated that in fact in September,2009 one Khandu Kashid and
his son Ganesh Kashid (for short 'Kashid') were in need of finance.
Respondent No.1 introduced them to the Applicant, the Applicant
was ready to give money to Kashid if Respondent No.1 was ready to
stand as a guarantor. Accordingly, money was given to Kashid after
Respondent No.1 signed one blank stamp paper and blank signed
cheque and gave the same to the Applicant. Kashid paid to the
Applicant interest only for two months and, therefore, the interest for
the whole of the year was paid by Respondent No.1 to the Applicant.
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After one year, as further interest was not paid, the applicant and
Vinod Mahadik-P.W.2 came to Respondent No.1's office and behaved
disorderly and gave threats to Respondent No.1 which led
Respondent No.1 to file a police complaint against the Applicant and
P.W.2 - Vinod at Trombay police station. In October,2011 the said
Kashid paid an amount of Rs.15,50,000/- out of Rs.30,50,000/- to
the Applicant and sought time of one year for repayment of balance
amount. The Applicant extended the time for one year. However,
Kashid again sought further six months time. Respondent No.1 on
behalf of Kashid requested the Applicant to extend time limit.
However, the Applicant continued demanding the amount from
Respondent No.1. On 12 October 2012 at about 8 p.m., the Applicant
alongwith Vinod Mahadik-P.W.2 and two unknown ladies came to the
residence of Respondent No.1 in his absence. Applicant and P.W.2
misbehaved with his wife and children and entered inside his house.
On being so informed by his wife, Respondent No.1 contacted the
police control room and two police personnel visited Respondent
No.1's residence. Respondent No.1's wife also lodged a police
complaint to that effect at the Turbhe Police station.
5. Respondent No.1 has stated in his deposition that the
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Applicant has prepared a false affidavit (Exhibit 53) on blank signed
papers which was in his custody. Respondent No.1 has deposed that
the Applicant has filed a false case on the basis of blank signed
cheque which was in his custody and in fact the subject cheque on
record at 'Ex.16' was of the series 2006. This cheque book was issued
to Respondent No.1 by the Bank of Maharashtra in the year 2006 and
the corresponding cheques numbers of the same series were
honoured in the year 2006. The original passbook to that effect was
placed on record. The applicant and his nephew Mr.Sandeep Waykar
were in the money lending business and a similar complaint was filed
against Respondent No.1 by said Mr.Sandee Waykar in the Court of
Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai in
C.C.No.134/SS/2012 in which Respondent No.1 came to be
acquitted by a judgment as placed on record at Exhibit 62.
Respondent No.1 also deposed that he has appropriately replied to
the statutory notice dated 1 November 2012 (Exhibit 63).
Respondent No.1 was cross examined on behalf of the Applicant.
However, as regards the evidence of Respondent No.1 that the
Applicant was running a money lending business without lincence,
there is no cross examination. In the cross examination, Respondent
No.1 has categorically denied that Respondent No.1 intended to sell
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the said flat at any point of time. It is denied that Respondent No.1
had approached the complainant and that there was an agreement to
sell the flat for an amount of Rs.36,00,000/-. Respondent No.1
categorically denied that as he was in need of money, and that the
Applicant had paid him an amount of Rs.30,50,000/- as part
payment under the said transaction on 5 November 2009
in the presence of Vinod Mahadik -P.W.2 and Sampat Shirole-P.W.3.
Respondent No.1 further denied that he was to give possession of the
flat to the Applicant on receiving balance amount of Rs.5,50,000/- on
or before 5 December 2009 as alleged by the Applicant. He also
stated that he was not knowing Vinod Mahadik - P.W.2.
5. Respondent No.1 examined Nitin Chandrakant Oze, the
Branch Manager (D.W.2) who in his deposition on the basis of the
banker's books of account, confirmed that the cheque in question
being Cheque No.89794 was from the series of the cheques issued
on 11 July 2006 and that after the cheque book containing the
cheques commencing from series nos.89781 to 89800 were issued,
the bank issued 14 cheque books to Respondent No.1. This witness
was cross examined on behalf of the Applicant. However, except for
the fact that Respondent No.1 had maintained account with the said
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bank and that there is no time limit to use any of the cheques,
nothing more of relevance can be seen in the cross examination.
6. The Applicant examined himself as P.W.1. In the cross
examination the Applicant stated that in the year 2006 he was
getting yearly income of Rs.7 to 8 lakhs and that he can produce the
income tax returns. On a question as to how the Applicant raised the
amount of Rs.30,50,000/- to be paid for the alleged transaction to
purchase the house of Respondent No.1, the Applicant stated that he
had taken the amount from his brother, also pledged the golden
ornaments and certain other borrowings from his brother etc., and
certain amount was taken from his business. The Applicant also
admitted that in the year 2009, he has not shown any such amount
in the Income Tax returns as the amount was paid to Respondent
No.1 in cash. Respondent No.1 also admitted that he has not seen
the papers of flat in question before making the deal as according to
him, Respondent No.1 had stated that the papers were in the bank,
as Respondent No.1 had taken a loan from the bank. In the cross
examination, he stated that the flat belongs to Respondent No.1,
however when confronted with the document of the flat namely
agreement dated 31 August 2001 (Exhibit 22) he admitted that the
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flat stands in the joint name of Respondent No.1 and his wife.
Respondent No.1 further admitted that he knew Respondent No.1
and he had miscellaneous monetary transactions with Respondent
No.1 and sometimes Respondent No.1 used to take hand loan from
him upto Rs.50,000/- and used to return it. He admitted that the
amount was not shown in the income tax returns. He denied that he
was dealing in the business of money lending and he used to advance
amount to accused and his friend. In the cross examination, the
Applicant was confronted with a copy of the document (Exhibit 54),
which was on a stamp paper of Rs.100/- which is a declaration on
the part of the Applicant which states that an amount of
Rs.30,50,000/- was payable by Respondent No.1 to the Applicant and
that out of the said amount, Rs.15,50,000/- was received by him in
the following manner:-
Cheque No. Amount Date Bank
076377 Rs.2,00,000/- 29.07.11 NKGSB-Deonar
078776 Rs.5,00,000/- 20.10.11 ---- " ----
084818 Rs.4,65,000/- 20.10.11 Maharasahtra Bank, Pa
- Rs.3,85,000/- 20.10.11 Cash
Rs.15,50,000/-
Applicant has stated that the balance amount of Rs.15,00,000/- has
been agreed to be returned by Respondent No.1 within one year i.e.
by 20 October 2012 and after the return of the said amount, the
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signed stamp papers which are in the custody of the Applicant and
the cheque of Rs.30,50,000/- and other documents would be
returned by the Applicant to Respondent No.1. The Applicant further
stated that in future he would not threaten Respondent No.1 of any
legal consequence. The execution of the document was witnessed by
Mr.Dashrath B. Thorat and Mr.Vinod Mahadik (P.W.2). In his
deposition, he has stated that this document was in the handwriting
of Respondent No.1 and that it was signed by himself, Respondent
no.1-Dashrath Thorat and Vinod Mahadik-P.W.2. He admitted the
contents of the said document. In this regard in the cross
examination he also admitted that even in this document there was
no mention about the transaction in respect of the flat as alleged in
the complaint.
7. P.W.2 Vinod Mahadik in his affidavit of examination in
chief stated that he knew Respondent No.1 as he was in the relation
of the Applicant and that they became friend for last 6 to 7 years.
What is of relevance in examination in chief is the following
statement:-
"4. That on 5.11.2011 Mr.Sudam Thorat had made
payment of Rs.30,50,000/- to Mr.Shashikant
Darandale in my presence in cash and affidavit in this
regard was executed by Mr.Shashikant Darandale, I
signed the same as witness and Mr.Sampat Sirale also
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signed as witness along with me and promised to hand
over possession within one Month, on receipt of
remaining amount."
8. In cross examination, P.W.1 Vinod Mahadik admitted that
there was dealing between the Applicant and Respondent No.1 in the
year 2008 or 2009, but he did not remember the month. In the cross
examination, he further confirmed the statement in the affidavit that
the payment was made by the Applicant on 5 November 2011.
9. In the affidavit of evidence of P.W.3 - Sampat Bala
Shirole, he stated that there was a deal about purchase of flat of
Respondent No.1 by the Complainant in the year 2009 for the
consideration of Rs.36,00,000/- and for that the Applicant had paid
an amount of Rs.30,50,000/- to the accused by cash on 5 November
2009 and that on 5 November 2009 Respondent No.1 executed the
writing on the stamp paper of Rs.100/- mentioning that Respondent
No.1 had received Rs.30,50,000/- in cash before executing the said
writing. He stated that Respondent No.1 promised to the applicant
that he would hand over possession of the flat within one month
from execution of the said document on receipt of balance amount of
Rs.5,50,000/- from the Applicant. He stated that he and Vinod
Mahadik (P.W.2) had signed the document as witnesses. In the cross
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examination, P.W.3 made a statement that talks as regards the flat
took place on 5 November 2009 and an amount of Rs.5,50,000/- was
paid on that date.
10. In the statement of Respondent No.1 recorded by the
Trial Court under Section 313 of the Code of Criminal Procedure, in
reply to the question as to what Respondent No.1 had to say on the
document at Exhibit 54 prepared on stamp paper of Rs.100/- where
Respondent No.1 agreed to make payment of Rs.15,00,000/- out of
Rs.30,50,000/- within a period of one year, the Respondent no.1
stated that the said document was prepared as per the instructions of
one Mr.Khandu Kashid and his son Ganesh Kashid to whom the
applicant had given an amount of Rs.30,50,000/- and for which
Respondent No.1 was a guarantor. He stated that an amount of
Rs.15,50,000/- was paid by Khandu Kashid and Ganesh Kashid to the
Applicant through him and accordingly, the said document as
executed by the Applicant was in his handwriting. He categorically
stated that the said amount was not paid by him for any lawful debt
on his part payable to the Applicant. In reply to question No.27,
Respondent No.1 denied that the cheque in question was issued by
Respondent No.1 in discharge of his liability.
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11. Having considered the evidence on record, it is clear that
the applicant was conducting a money lending business without
licence and that in the past he had advanced money to Respondent
No.1 five to six times as is seen from his evidence. The document at
Exhibit 54, a copy of which is produced at the instance of the
Applicant, makes the position further clear that certain blank cheques
and stamp papers which were signed by Respondent No.1 was in the
custody of the Applicant which the Applicant had agreed to return
the same after the financial dealing between the parties are over.
The evidence which is on record does not inspire any confidence of
the case of the Applicant in the complaint that there was a
transaction between the parties to sell a flat belonging to Respondent
No.1 and his wife to the Applicant and for that purpose any amount
was paid by the Applicant to Respondent No.1. In fact the document
at Exhibit 54 dated 26 October 2011 on the basis of which the
Applicant asserts existence of transaction is completely silent in that
regard. Moreover the said document supports the case of Respondent
No.1 that the Applicant was conducting a money lending business
without licence and in regard to certain previous borrowing, the
Applicant had taken blank signed cheque and blank signed stamp
paper from Respondent No.1. The document categorically mentions
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about these blank cheques and blank stamp papers. The Applicant
has also stated that he has filed income tax returns, and in the year
2006 and 2009 his yearly income was Rs.7 to 8 lakhs. The Applicant
failed to bring any evidence to show that as to how the amount of
Rs.30,50,000/- was paid in cash by the Applicant to Respondent No.1
on 5 November 2009. The Applicant has not examined any witness
to prove the borrowings of this large amount of money. Moreover,
the Applicant has admitted that he has not reflected either these
borrowings or the payment made to Respondent No.1 in the income
tax returns. The evidence thus clearly reveals that the story of sale of
flat and that any amount was paid towards the same to Respondent
No.1 was false as it could not be proved by the Applicant. The
cumulative effect in appreciation of the evidence is that the Applicant
failed to discharge his burden under Section 138 of the Negotiable
Instruments Act to prove that there was any lawful debt payable by
Respondent No.1 in respect of the transaction of the sale of the flat as
alleged by the Applicant in the complaint. Further more, it is clear
from the evidence which has come on record that the cheque book in
question pertaining to cheque in question was itself of the year 2006
and that 14 cheques were issued thereafter.
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12. The case of Respondent No.1 that in September,2009
one Khandu Kashid and his son Ganesh Kashid had borrowed the
amount from the Applicant and Respondent No.1 stood guarantor is
also required to be believed as there is no cross examination on this
as also nothing contrary has come in the cross examination or in the
evidence of the Applicant, and therefore these facts would be
required to be considered as proved.
13.
In view of the above discussion and taking into
consideration the substantive evidence on record, I do not find that
there is any perversity factual or legal in the findings as recorded by
the Trial Court in dismissing the complaint of the Applicant.
14. Accordingly, the Application is rejected. No order as to
costs.
(G.S.Kulkarni,J.)
