The Washim Urban Co-Op Bank Ltd vs State Of Mah. & Anor
2017 Latest Caselaw 3397 Bom

                                                                                             CRI.APPEAL.430.08
                                                             1


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

                             CRIMINAL APPEAL NO. 430/2008

          Washim Urban Cooperative Bank Limited 
          Washim, Branch Washim 
          Tahsil and District: Washim                                                          ..   APPELLANT

                     v e r s u s

1)        State of Maharashtra

2)         Kisan Bhika Jadhav 
           Aged 40 years, resident of Jyotibanagar,
           Shendona, Tahsil Manora, 
           Dist. Washim                                                                         .. RESPONDENTS
...........................................................................................................................
           Ms. A.Kshirsagar, Adv.h/for Mr.  A. S. Mardikar, 
           Senior counsel for the appellant 
           Mr. V.P. Gangane, Additional Public Prosecutor for  appellant no.1 
           None for the respondent no.2
............................................................................................................................

                                                    CORAM: MRS. SWAPNA JOSHI, J.
                                                    DATE OF RESERVING :  31.05.2017
                                                    DATE OF PRONOUNCEMENT: ...06.2017
JUDGMENT: 

This Appeal has been preferred by the complainant against the

judgment and order dated 15.11.2005 thereby acquitting the accused/

respondent no.2 in Summary Criminal Case No. 873/2005 for the offence

punishable under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter referred to as the "N.I.Act").

2. The case of the complainant, in brief, is that the complainant-Bank

granted cash credit facility of Rs.10,000/- to the respondent no.2/accused-

CRI.APPEAL.430.08

Kisan, on 09.04.2001. The accused executed necessary documents in favour of

the Bank. There was an outstanding amount of Rs.14,380/-. An award of Rs.

14,380/- was passed by the Assistant Registrar, Cooperative Societies, with

interest thereon. On 01.03.2005, the amount due with interest was to the tune

of Rs. 20,004/-. On 23.02.2005 a cheque was issued by the accused in respect

of the loan outstanding against him for the amount of Rs.20,004/- bearing

Cheque No.626151 thereby admitting his liability. The said cheque was issued

by the accused towards outstanding amount and for crediting the same in the

account of his father. The said cheque was presented in the Bank. However on

12.03.2005, it was dishonoured for want of sufficient funds in the account of

the accused. On 17.03.2005, the complainant-Bank issued notice to the

accused for payment of the cheque amount, which was received by the accused

on 21.03.2005. As the accused failed to pay the said amount, the complaint

was lodged by the complainant on 09.05.2005. In fact, he should have filed it

on or before 07.05.2005 ie, within fifteen days from the receipt of notice by

the accused. However, the delay of two days was condoned by the learned

Magistrate on considering the evidence before the Court and acquitted the

accused.

3. Heard Ms.Kshirsagar, learned counsel for the complainant. She

vehemently argued that the accused had issued a cheque on 23.02.2005 for

the payment of loan outstanding against him, which was dishonoured, for

want of sufficient funds. According to her, since the notice was served upon the

CRI.APPEAL.430.08

accused on 21.03.2005, the complainant has established the procedural

requirements of Section 138 of the N.I. Act. It is submitted that the impugned

judgment is illegal and perverse, in as much as the learned Magistrate has not

considered the evidence on record in its right perspective.

4. As against this, Shri Gangane, learned Additional Public Prosecutor

contended that the learned Magistrate has rightly considered the evidence on

record. According to learned A.P.P. the accused had issued the said cheque

by way of security of transaction of loan. The learned A.P.P. pointed out that

there is an unexplained delay in lodging of the complaint and the accused had

given an undertaking after lodging of the complaint. Hence, it is of no

assistance to the complainant for the purpose of extending the limitation. So

also, the cheque issued by the accused was deposited in the account of his

father which indicates that the entire transaction was with the father of the

accused and not with him. Therefore, the case does not fall within the ambit of

Section 138 of the N.I. Act.

5. I have considered the rival contentions of both the sides and gone

through the record carefully. As far as the contention of the learned A.P.P. that

there is an unexplained delay in lodging of the complaint, it is apparent that

the said delay is not satisfactorily explained. The learned Magistrate has

expressed that the delay is condoned, as per the order passed on Exh.1.

However the order depicts that the delay in lodging the complaint was

condoned, subject to proving the cause, at the time of trial. According to the

CRI.APPEAL.430.08

complainant, the delay in lodging of the complaint was caused as the accused

had assured the Bank to pay the amount. The said reason has not been

elaborated in the evidence of the complainant. The said reason is not a

plausible explanation as the complainant had already made up his mind to

lodge the complaint against the accused. So far as the provisions of Section

138 are concerned, they are very categoric that fifteen days for the payment of

the amount commences from the date of receipt of the notice. Proviso under

section 142(b) clarifies that if the delay is satisfactorily explained, it may be

condoned. However, in the present case, the cause for delay in lodging the

complaint remained unexplained which goes to the root of the case and on

this count, the complaint could not be ignored.

6. The cheque amount of Rs.20,004/-was allegedly outstanding against

the accused and so far as the cheque is concerned, it is in the name of

Recovery Officer, Washim Urban Cooperative Bank, Branch Manora. The

cheque is dated 23.02.2005. Exh.26 which is the the extract of the account of

the accused dated 28.02.2005 reveals that the amount of Rs.13,509/- was

outstanding against the accused. In fact, it was the duty of the complainant to

maintain the credit account of the outstanding amount. The said amount was

shown as Rs.13,509/- and not as Rs. 20,004/-, as claimed by the complainant.

It is the case of the accused that the complainant had received the said cheque

at the time of granting of loan which bears his signature. According to the

accused, it was a security cheque. The complainant has not proved that the

CRI.APPEAL.430.08

cheque was issued from a particular cheque book. The said fact would have

proved as to when the cheque was issued, whether at the time of signing the

loan papers or thereafter. The complainant-Bank has failed to adduce any

evidence in that regard. Similarly, it was the duty of the complainant to prove

as to who had written the contents in the cheque and the date on it, so also the

amount. From the contents in the cheque, it is noticed that the handwriting of

the contents in the cheque and of the signature on the cheque are totally

different. It appears that the accused has simply signed on the cheque and the

contents in the cheque were filled in by some different person. Interestingly,

the complainant has not given the correct account of the outstanding amount

at the time of issuing of the cheque by the accused. The complainant ought to

have clarified the exact amount outstanding against the accused. Merely

submitting that the accused had given the cheque for the payment of

outstanding loan and it is dishonoured, is not sufficient to prove the guilt of

the accused, under the provisions of Section 138 of the N.I. Act. It indicates

that the cheque was obtained from the accused towards security. It is

surprising to note that the complainant did not verify the account Number of

the said cheque at the relevant time. It appears that the account was of the

father of the accused and the transaction was also with the father of the

accused. As per the contention of the complainant, the cheque was drawn in

the account bearing Savings Account No.1209 for Rs.20,004/- and the cheque

(Exh.19) was issued by the accused towards the outstanding loan amount and

CRI.APPEAL.430.08

for crediting the same in the account of his father. Pertinently, the statement

of account (Exh.26) indicates account number of the accused as 0000226. It

means that the account number of the accused was 0000226 and not 1209,

which was mentioned on the cheque. It also indicates that the said account

No.1209 was not of the complainant and it appears that the cheque was drawn

on the account of the father of the accused, as stated by the complainant in

his complaint. In view of the said discrepancy in the account number

mentioned on the cheque and on the statement of account of the accused, the

offence punishable u/s. 138 of the N.I. Act is not made out against the

accused. So far as the provisions under section 138 of the Act are concerned,

to constitute the offence u/s 138 of the N.I. Act, the following ingredients are

required to be fulfilled:-

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in while or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;

(v) the payee or the holder in due course of the cheque makes

CRI.APPEAL.430.08

a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

7. It is the pre-requisite of the offence punishable under section 138 of

the N.I. Act, that the a cheque drawn by a person must be on an account

maintained by him with a banker for payment of an amount and if such a

cheque is dishonoured, the drawer of the said cheque will be liable for the said

offence. In the instant case, it is found that the cheque in question was not

drawn on the account maintained by the accused in Washim Urban

Cooperative Bank, Washim. In these circumstances, no case is made out

against the accused for the offence punishable u/s 138 of the N.I. Act.

8. In the case of Jugesh Sehgal vs. Shamsher Singh Gogi, reported in

MANU/SC/1198/2009, it happened that the dishonoured cheque was issued

from an account which was not maintained by the accused but it was of some

other person. Therefore, a complaint was lodged against the accused for the

offence punishable u/ss. 420, 467, 468, 471 and 406 of the IPC. It was held

by the Hon'ble Supreme Court that the very first ingredient of Sec.138 of the

Act is not satisfied and, as such, the offence u/s 138 of the Act cannot be

CRI.APPEAL.430.08

proved.

9. In the instant case, as discussed above, the cheque was issued by the

accused which was drawn on the account which was not belonging to the

accused but someone else. It appears that the said account was of the father of

the accused. In view thereof, it can safely be said that the ingredients of

Section 138 are not attracted.

10. The complainant has relied upon the undertaking (Exh.29) dated

25.07.2005 which was given by the accused after filing of the complaint.

Therefore the said undertaking does not cover the liability of the accused as it

was given after lodging of the complaint and it does not give any benefit to the

complainant for the purpose of enhancing the limitation to lodge the

complaint. It is worthy to note here that paragraph 3 of the complaint reveals

that the cheque was given towards outstanding and for crediting the same in

the account of his father. It is,thus, clear that the cheque was issued in respect

of the account of the father of the accused and not related to the account of

the accused. Paragraph 2 of the complaint reveals that the cheque was issued

from the account of the accused. However, the account number is not

mentioned. In paragraph 3 of the complaint, it is mentioned that the cheque

was issued for crediting the same in the account of father of the accused. The

said fact makes amply clear that it does not attract the provisions of Section

138 of the N.I.Act. On careful scrutiny of the case, it appears that the loan

transaction was with the father of the accused and the accused had handed

CRI.APPEAL.430.08

over the cheque which was to be credited in the account of his father, to repay

the outstanding amount due on his father and the said cheque was utilised by

the bank authority for securing the dues of the accused from his account i.e.

Account No. 0000226.

11. Thus, the complainant has utterly failed to prove that the cheque was

drawn on the account of the accused. The ingredients of section 138 of the

N.I. Act are not proved by the complainant. The accused is therefore entitled

for acquittal.

12. It is well-settled principle of law that in exercise of its appellate

jurisdiction particularly in appeal against acquittal, it is not open to this Court

to substitute its own view with the view taken by the lower court, unless the

view taken by the lower Court is illegal, perverse or against the principle of

law. No sufficient grounds are made out at the appellate stage so as to

interfere with the impugned judgment and order. Since no perversity or

illegality is noticed in the impugned judgment and order of the learned

Magistrate, the Appeal is liable to be dismissed.

In the result, the Appeal is dismissed, with no order as to costs.

JUDGE

sahare