Bombay High Court

Tapankumar S/O Subhashchandra ... vs State Of Maharashtra & Another on 7 August, 2017

Bench: Swapna Joshi

                                                                                               CRI.APPEAL.81.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                              CRIMINAL APPEAL NO. 81/2003

          Tapankumar  s/o Subhashchandra Bose 
          Aged about 43 years,  occu: service 
          R/o Kamptee Colliery, Tah. Parseoni 
          Dist. Nagpur.                                                                        ..   APPELLANT 

                     v e r s u s

1)        State of Maharashtra 

2)        Sanjay s/o Manohar  Agrawal 
          Aged major,  occu: Proprietor of 
          M/s  Agrawal Cable, Station Road,
          Kanhan,  Tah. Parseoni 
          R/o  Raibahadur Oli, Kamptee
          Tah.Kamptee, Dist. Nagpur.                                                         .. RESPONDENTS

...........................................................................................................................
           Mr. G.M. Shitut, Advocate for appellant 
           Ms. Shamsi Haider, Additional Public Prosecutor for respondent no.1
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     7th August, 2017

ORAL  JUDGMENT:

1. This Appeal has been preferred by the original complainant

against the judgment and order dated 18th December 2002, delivered in

Summary Criminal Case No.311/2001 by the learned Judicial Magistrate, First

Class, Kamptee, thereby acquitting the respondent no. 2, under Section 138

of the Negotiable Instruments Act, 1881.

2. Heard Mr. G.M.Shitut, the learned counsel for the appellant/

CRI.APPEAL.81.03

original complainant and Ms. Shamsi Haider, the learned Additional Public

Prosecutor for respondent no.1-State. The respondent no.2 though served,

none appears on his behalf. With the assistance of learned counsel appearing

for respective parties, I have gone through the records of the case and the

impugned judgment and order.

3. Mr. Shitut, the learned counsel for the appellant contended that

the acquittal of the respondent no.2 by the learned Magistrate is perverse and

illegal. The learned Magistrate has failed to consider the testimony of PW 1-

Tapankumar Bose/the appellant, which goes to show that the cheque was

issued by the respondent no.2 towards the liability.

4. Ms. Shamsi Haider, the learned Additional Public Prosecutor

contended that the learned Magistrate has rightly passed the order on

considering the evidence on record.

5. The prosecution case in nutshell is that, the complainant is an

employee of Black Diamond Cooperative Societies, Kamptee Colliery, Tq.

Parseoni, Dist. Nagpur. The respondent no.2/ accused is a Proprietor of M/s

Agrawal Cable and he is carrying on his business on Station Road, Kanhan.

They are acquainted with each other. The respondent no.2 was in dire need

of money and as such, he requested the complainant for hand-loan of Rs.

48,000/-. The respondent no.2 issued a cheque bearing No.135503 dated

29.1.2001, drawn on Indian Bank, Kamptee Colliery Branch, for Rs. 31,500/-.

The complainant presented the said cheque in the Bank for its encashment.

CRI.APPEAL.81.03

However to his utter surprise, it was returned for the reason "insufficient

funds". The complainant then shot off a notice to the respondent no.2 on 9th

February, 2001 by registered post acknowledgment due. It was duly received

on 13.2.2002 by the respondent no.2. By the said notice, respondent no.2

was called upon to pay the amount of the cheque within 15 days from the

date of receipt of the said notice. However the respondent no.2 failed to return

the said amount within the stipulated period. Since the respondent no.2

failed to repay the said amount, the complainant filed his complaint on

21.3.2001. The learned Magistrate proceeded with the trial and came to the

conclusion that the accused is entitled for acquittal under Section 138 of the

Negotiable Instruments Act, 1881.

6. The prosecution has examined only two witnesses, PW 1 is the

complainant-Tapankumar Bose, whereas PW 2-Bharadwaj Vaidya, is the Bank

official. The respondent no.2/accused has also stepped into the witness box.

7. It is not at all disputed that the respondent no.2 had drawn a

cheque No. 135503 on his account without having any sufficient funds in

his account, to pay the amount of cheque. It is also not in dispute that the

notice was issued by the complainant to the respondent no.2 and it was duly

served upon him. The learned counsel for the appellant mainly argued on the

point that the learned Magistrate has erred in not considering that the

complainant had paid the amount of Rs. 48,000/- to the respondent no.2

and, in turn, the cheque was issued by him towards the repayment of the said

CRI.APPEAL.81.03

hand-loan. Now coming to the evidence available on record, it is noticed that

the complaint reveals that the complainant had advanced the amount of Rs.

48,000/- to the respondent no.2. Towards the part repayment of the hand-

loan given to the respondent no.2, the respondent no.2 has issued the said

cheque on 29.1.2001. The testimony of PW-1 reveals that the respondent no.

2 had attended the office of the complainant on 28.04.2000 and he demanded

an amount of Rs. 50,000/- for the purpose of marriage of his sister.

Significantly, the said reason is not reflected in the complaint of the

complainant and in the form of an improvement it is reflected in the testimony

of the complainant. It is thus not clear as to for what purpose the complainant

had handed over the amount to the respondent no.2 and on which particular

date the complainant had handed over the amount of Rs. 48,000/- to the

respondent no.2. It is noticed that the learned Magistrate has rightly observed

that the complainant has not brought on record any material evidence on

record to show that he has paid the amount of Rs. 48,000/- to the

respondent no.2 and, in turn, the cheque was issued by the respondent no.2

towards the repayment of the hand-loan. Since the complainant has failed to

state the date on which the hand-loan was given to the respondent no.2, it

appears that on 29.1.2001 i.e. on the date on which the cheque was issued

by the respondent no.2 in favour of the complainant, on that date only the

amount of Rs. 48,000/- was handed over to the respondent no.2. It is,

however, not proved beyond reasonable doubt that the cheque was issued by

CRI.APPEAL.81.03

the respondent no.2 in favour of the complainant towards discharge of any

debt or liability. The learned Magistrate has rightly considered the case of the

respondent no.2 that the respondent no.2 had never taken any loan from the

complainant and there was no marriage performed in his family and

therefore, actually there was no question of taking of any hand-loan from the

complainant for the purpose of marriage of his sister.

8. Section 138 of the Negotiable Instruments Act, 1881 reads thus,

138. Dishoniour of cheque for insufficiency ,etc. of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both."

In the instant case, there is no convincing evidence on record to

show that the amount of Rs. 48,000/- was given by the complainant to the

CRI.APPEAL.81.03

respondent no.2 for marriage purpose and, in turn, the respondent no.2

issued a cheque in discharge of his liability.

9. In the case of Kumar Exports vs. Sharma Carpets, reported in

(2009) 2 SCC 513, the Hon'ble Apex Court has held as under :

"Once testimony of the official of the Sales tax Department is accepted it becomes evident that no transaction of sale of woolen carpets had taken place between the respondent and the appellant. When the sale of woolen carpets had not taken place, there was no existing debt in discharge of which, the appellant was expected to issue to the respondent. The accused has discharged the onus of proving that the cheques were not received by the holder for discharge of debt or liability."

In the case of Ramdas s/o Khelu Naik vs. Krishnand s/o

Vishnu Naik, reported in (2014) 12 SCC 625, cheque for Rs. 5,00,000 issued

by appellant in favour of respondent was dishonoured. The trial Court,

dismissed the complaint since complainant failed to show that cheque was to

discharge liability towards complainant. The High Court reversed trial Court

judgment. The appellant-accused, a property dealer, and respondent