Bombay High Court
Vasant Shankar Chavan vs Eknath Dattu Kamte & Anr on 28 June, 2017
Bench: N.M. Jamdar
YBG 1
201-apeal-335-98
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO.335 OF 1998
Vasant Shanker Chavan
aged about 40 years, occupation
Agriculturist, residing at Borwade,
Taluka Kagal, Dist. Kolhapur .. Appellant
Versus
1] Eknath Dattu Kamte
aged adult, occupation service
residing at Alabad (kapahi) Taluka
Kagal, Dist. Kolhapur
2] The State of Maharashtra .. Respondents
Mr. Prashant Badale for appellant
Mr. P.H.Gaikwad, APP for State.
CORAM : N.M.JAMDAR, J.
DATE : 28th June 2017.
ORAL JUDGEMENT:-
1] By this appeal filed by the original complainant, the
challenge is to the order passed by the Judicial Magistrate, First
Class, Kagal dated 31st August 1996 acquitting the respondent No.1
of the offences punishable under section 138 of the Negotiable
Instruments Act.
201-apeal-335-98
2] According to the appellant - original complainant, in the last
week of January 1995, the respondent No.1 met the appellant and
sought a loan of Rs.35 to 40,000. According to the appellant, an
amount of Rs.25,000/- was lent to the respondent No.1 in the first
week of February 1995, for which the respondent No.1 issued a post
dated cheque bearing No.117993 drawn on State Bank of India
dated 2nd April 1995. According to the appellant, the respondent
No.1 had requested him to deposit the cheque few days after 2 nd
April 1995. The appellant, therefore, deposited the cheque on 24 th
July 1995 and according to the appellant, banker's sent a letter /
memo to the appellant on 14th August 1995 intimating him that the
cheque was dishonoured. The appellant gave notice on 21 st Augst
1995 and filed a complaint under section 138 of the Negotiable
Instruments Act (N.I.Act for short) on 26th September 1995.
3] The case was tried by the learned Magistrate as summary
C.R.No.95 of 1996 for offences punishable under section 138 of N.I.
Act. The learned Magistrate, after considering the evidence on
record, came to the conclusion that the complaint was not filed
within the period of limitation as required and proceeded to acquit
201-apeal-335-98
the respondent on this count.
4] Heard Mr. Badale, the learned Counsel for the appellant and
the Mr. Gaikwad learned APP. By the order passed earlier this
Court had issued warrant to the respondent No.1 who has remained
absent.
5] Mr. Badale, the learned Counsel for the appellant submitted
that the learned Magistrate has held that the cheque was issued in
discharge of the liability, however, has acquitted the respondent
No.1 only on the ground of limitation which from the discussion, it
appears that the learned Magistrate was under wrong impression as
regards the dates. Mr. Badale submitted that the learned Magistrate
has erroneously given importance to a typographical error in the
complaint which states incorrect date at only one place. He
submitted that if the evidence on record is perused, it is seen that it
was merely a typographical error.
6] I have considered the contentions raised and perused the
record and impugned judgement. Though it is correct to state that
201-apeal-335-98
the learned Magistrate proceeded on incorrect factual premise as
contended by the learned Counsel for the appellant, it is not the
only facet of limitation on which the respondent No.1 was acquitted.
The notice has to be sent within 15 days from the receipt of the
banker's memo. According to the appellant, the banker's memo was
received on 14th August 1995 and the notice was issued on 21 st
August 1995. Therefore, proving of receipt of banker's memo was a
crucial step that the appellant needed to cross. The learned
Magistrate has held that the appellant did not provide the receipt of
banker's memo on 14th August 1995 and this crucial piece of
evidence has not come on record. The explanation given by the
appellant that the bankers' memo was lost has rightly not been
believed by the learned Magistrate as lack of any satisfactory
explanation. Since the crucial document did not come on record,
which would establish that the proceedings were initiated within the
period of limitation, the benefit was rightly extended to respondent
No.1. Since the bankers' memo has admittedly not brought on
record, the view taken by the learned Magistrate giving benefit to
respondent No.1 and holding that the complaint was not filed within
the period of limitation, cannot be stated to be a perverse view.
201-apeal-335-98
7] Considering this factor and considering the passage of time
and nature of offence, I am not inclined to reverse the order of
acquittal as no case is made out in that regard. The appeal is
accordingly dismissed. No costs.
( N.M.JAMDAR, J.)
