Sau.Ashatai W/O Vitthalrao ... vs Anjali W/O Prafulla Zilpilwar And ...
2017 Latest Caselaw 5127 Bom

                                                                                            1                                                       apeal643.06

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                     CRIMINAL APPEAL NO.643/2006

Sau. Ahatai W/o Vitthalrao Gandhewar, 
aged about 66 Yrs., Occu. Household, 
R/o Prabhag No.3, Ward No.8,
Rampura, Wani, Tq. Wani, 
Distt. Yavatmal.                                                                                                                                                 ..Appellant.

                          ..Vs..

1.          Sau. Anjali W/o Prafulla Zilpilwar,
            aged about 30 Yrs., Occu. Household, 
            R/o Shashtrinagar, At Post Pandharkawada, 
            Tq. Kelapur, Distt. Yavatmal. 
  
2.          Sau. Savita W/o Narendra Gaurkar,
            aged about 33 Yrs., Occu. Business,
            R/o Ganeshpur Road, At Post & Tq.
            Wani, Distt. Yavatmal. 

3.          Rajesh S/o Babarao Zilpilwar,
            aged about 39 Yrs., Occu. Service, 
            R/o Deshmukhwadi, At Post, 
            Tq. Wani, Distt. Yavatmal.                                                                                                             ..Respondents.
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           None for the appellant.
           Ms. Rohini Jaiswal, Advocate for the respondents.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     27.7.2017.



ORAL JUDGMENT

1. The original complainant has filed this appeal to challenge the judgment passed by the learned Magistrate by which the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act is dismissed and the respondents / accused are acquitted.

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2. The learned Magistrate has recorded that the complainant has proved that the cheque was given by the accused to discharge legally enforceable liability and the notice as required by Section 138 of the Negotiable Instruments Act was issued by the complainant, however, the complaint is dismissed on the ground that the complainant had earlier issued a notice (Exh. No.50) to the accused No.3 (agent) and then issued another notice (Exh. No.51) to all the three accused and then filed the complaint on the basis of the second notice, which is not permissible.

3. The facts on record show that the respondents had given cheque No.296208 dated 17th December, 2003 for the amount of Rs.67,000/- to the complainant, this cheque was presented to the bank on the same day i.e. 17 th December, 2003 and it was returned on the same day with endorsement "referred to drawer". Another cheque No.296209 dated 27th December, 2003 was issued by respondents for the amount of Rs.68,000/- which was presented by the complainant and was encashed.

4. According to the respondents / accused, they were liable to pay an amount of Rs.67,000/- to the complainant and accordingly cheque No.296208 was given to her on 17th December, 2003, however, as the cheque was not honoured and it was returned by the complainant to the respondents and, therefore, another cheque bearing No.296209 for Rs.68,000/- was given in lieu of the first cheque on 27th December, 2003, which was presented by the complainant and was honoured by the bank. According to the respondents / accused, cheque No.296209 was given to discharge the liability of Rs.67,000/- for which earlier cheque No.296208 was given and an additional amount of Rs.1,000/- was given to the complainant because of the inconvenience caused to her as cheque No.296208 was not encashed / honoured.

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5. Though I find that the reason recorded by the learned Magistrate for dismissing the complaint that the complaint was not maintainable in view of issuance of the second notice (Exh. No.51), is not proper and the complaint should not have been dismissed on that ground, I find that the learned Magistrate has committed an error in not framing the point for determination as to whether the cheque in question was given by the accused to the complainant to discharge the legally enforceable debt / liability.

6. Initially, I proposed to remit the matter to the trial Court for deciding the complaint afresh after formulating the point for determination properly but the learned Advocate for the respondents argue that remand after about 12 years would be unjustified.

Ms. Rohini Jaiswal, learned Advocate relied on the judgment given in the case of Mohinder Singh and others V/s. State of Punjab and another reported in (1985) 1 SCC 342 and submitted that as the evidence in support of the defence of respondents is on record this Court may decide the appeal on merits. The submission made by the learned Advocate being worth consideration, I have examined the record and have gone through the evidence led by the parties.

7. I find that the complainant could not have claimed the amount of Rs.67,000/- from the respondents and could not have filed the complaint against the respondents.

In reply to the notice of the complainant, the respondents / accused stated that the cheque No.296208 for Rs.67,000/- was returned to them on 17 th December, 2003 and then cheque No.296209 was issued on 27 th December, 2003 to pay the amount of Rs.67,000/- to the complainant and in addition the amount of Rs.1,000/- was paid as inconvenience was caused to the complainant because of dishonour of earlier cheque. The respondents /

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accused having discharged the burden of showing that the amount of Rs.67,000/- payable by them to the complainant and for which cheque No.209208 was issued has been paid by cheque No.296209, the burden was on the complainant to show that inspite of receiving the amount of Rs.68,000/- by encashing cheque No.296209, the respondents / accused were liable to pay Rs.67,000/- to the complainant. The appellant / complainant has not led any evidence to show that the cheque No.296209 for Rs.68,000/- was issued by the respondents / accused to discharge some other liability and not to discharge the liability of payment of amount of Rs.67,000/- for which earlier cheque No.296208 was issued. The learned Magistrate has not considered the relevant evidence on this point and, therefore, has committed an error in recording that the complainant has proved that the cheque in question was given to discharge legally enforceable debt / liability. As I find that the respondents / accused have discharged the burden of showing that the amount of Rs.67,000/- payable by them to the complainant is paid by cheque No.296209 issued on 27 th December, 2003 and as the complainant has failed to show that cheque No.296209 was issued by the respondent No.1 accused to pay the amount of Rs.68,000/- other than the amount of Rs.67,000/- for which cheque No.296208 was issued, it has to be held that the complainant has failed to prove that the cheque in question was given by the respondent / accused to discharge legally enforceable debt / liability.

8. In the above facts, though for different reasons, the judgment passed by the learned Magistrate dismissing the complaint is maintained. The appeal is dismissed.

JUDGE

Tambaskar.