Bombay High Court
Rajendra Surajmal Manudhane vs Arun Mahadeorao Anasare on 30 June, 2017
Bench: Swapna Joshi
1 Judg cri. apeal 519.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.519 of 2004
Rajendra Surajmal Manudhane,
Aged about 38 years, Occ.- Business,
R/o.-Mahajan Niwas, Station Road, Yavatmal,
Tq. and Dist-Yavatmal. .... Appellant.
-Versus-
Arun Mahadeorao Anasare,
Aged about 42 years, Occ.-Service,
R/o.-Janta Junior College, Deoli, Dist. Wardha. .... Respondent.
--------------------------------------------------------------------------------------------------
Mr. Abdul Subhan, Advocate holding for Mr. F.T. Mirza, Advocate for the
appellant.
Mr. S.S. Deshpande, Advocate for respondent.
--------------------------------------------------------------------------------------------------
Coram : Mrs. Swapna Joshi, J.
Date of reserving judgment : 19-06-2017.
Date of pronouncement : 30-06-2017.
J U D G M E N T
This appeal has been preferred by the appellant complainant
against the judgment and order dated 24-05-2004 delivered in Other
Summary Criminal Case No.1805 of 2002 by the learned Judicial
Magistrate First Class, Yavatmal, thereby acquitting the respondent of the
offence punishable under Section 138 of the Negotiable Instruments Act,
1881.
2 Judg cri. apeal 519.04.odt
2] Heard the learned Counsel for the appellant complainant as well as
the learned Counsel for the respondent. I have carefully gone through the
record of the case and the impugned judgment and order.
3] The prosecution case in nutshell is that; the appellant and the
respondent (hereinafter referred to as "the accused" for the sake of
brevity) were having cordial relations with each other. The accused was in
need of Rs.75,000/-. He requested for the said amount to the complainant.
On his request, the complainant handed over the amount of Rs.75,000/- to
the accused for the purpose of construction of his house and private
purpose on 28-02-2002. In token, one document i.e. stamp paper of
Rs. 20/- was prepared and executed with regard to the said transaction by
the accused. The accused gave the cheque bearing no.014773 of
Rs.75,000/- of the Yavatmal Urban Cooperative Bank, Branch Datta
Chowk, Yavatmal to the complainant on the same day. The accused
assured the repayment of Rs.75,000/- prior to 05-07-2002. The accused,
however, did not repay the said amount to the complainant. Therefore, on
05-07-2002 the complainant deposited the said cheque in his bank i.e the
Bank of Syndicate, Branch Yavatmal for encashment. However, on
06-07-2002, the complainant received the memo of Bank of Syndicate,
Branch Yavatmal along with the memo of the Yavatmal Urban Cooperative
Bank, Branch Datta Chowk, Yavatmal thereby he was informed that the
said cheque was dishonoured due to "insufficient funds" in the account of
the accused. The complainant then issued notice on 12-07-2002 to the
accused demanding the amount of Rs.75,000/- within 15 days. The
3 Judg cri. apeal 519.04.odt
accused received the said notice. However, he did not pay the said
amount to the complainant, Therefore, the complainant filed the complaint
against the accused for the offence punishable under Section 138 of the
Negotiable Instruments Act.
4] To prove his case, the complainant examined himself as well as his
Advocate Mr. Anil Dahale. The learned Counsel for the complainant
vehemently argued that, the judgment passed by the learned Magistrate
is illegal and perverse as much as he failed to consider the testimony of
the complainant in right perspective. The learned Counsel for the accused
contended that the learned Magistrate has rightly passed the judgment
and order and no illegality is found in the order passed by the learned
Magistrate.
5] In order to consider the lawful submissions of the learned Counsels
of the both sides, it is necessary to go through the evidence of the
complainant. It may be mentioned here that so far as the defence of the
accused is concerned, it is the specific case of the accused that he had
taken a loan from one Credit Society known as Shri Sant Jalaram Saving
and Investment Private Limited run by one Kantilal Ruparel who is the
friend of the complainant. It is the case of the accused that he had taken
a loan amount of Rs.50,000/- from the said Credit Society and as a matter
of security, he issued a blank cheque and handed over to Kantilal.
According to the accused, he never issued any cheque to the complainant
and he denied any liability for the said cheque.
4 Judg cri. apeal 519.04.odt
6] The testimony of the complainant reveals that as the accused was
in need of money of Rs.75,000/-, on demand he gave the said amount to
the accused whereas the accused in turn executed a stamp paper of
Rs.20/- in favour of the complainant and issued a cheque of Rs.75,000/-
for the repayment of said amount. The cheque was dishonoured on being
presented on 05-07-2002. The notice was issued by the complainant,
which was served upon the accused, however, accused did not pay the
said amount. It is worthy to note that during the cross examination the
complainant admitted that prior to the said transaction there were some
minor transactions between him and the accused. The complainant
admitted that he did not make any enquiry with the accused whether the
construction work, for which he demanded the amount, was going on or
not. The said question was probably asked to the complainant in order to
verify whether the accused had utilized the said amount for the purpose
for which he had allegedly demanded the amount from the complainant.
Significantly, according to the complainant, the amount of Rs.75,000/-
was given to the accused in cash in presence of two customers of his
shop. However, he failed to examine anyone of them, in order to
substantiate his contention. The complainant failed to produce the stamp
paper of Rs.20/- allegedly executed by the accused on 28-02-2002. Thus,
the complainant has failed to prove the transaction between him and the
accused as such, although the amount was handed over by the
complainant allegedly in the presence of two customers. The complainant
has, thus, failed to prove that the cash amount of Rs.75,000/- was handed
5 Judg cri. apeal 519.04.odt
over by him to the accused on 28-02-2002.
7] As far as the cheque (Exhibit 34) is concerned, it is noted that the
contents of the cheque are written in blue ink. The complainant admitted
that those contents were in his handwriting. The cheque bears the
signature of the accused. According to the complainant, after writing the
contents on the said cheque the accused put his signature on it and also
on the stamp paper. The stamp paper is not produced by the complainant.
So far as the cheque is concerned, since the contents of the cheque are
filled in by the complainant himself, the case of the accused that the blank
cheque was handed over by him to Kantilal appears to be convincing, in
the absence of the stamp paper allegedly signed by the accused. It
appears that the blank cheque was misused by the complainant.
Interestingly, although the cheque is dated 28-02-2002, according to the
accused, the cheque book was issued to him by the bank in the year
1999. It is the specific case of the accused that he had taken a loan from
Kantilal in the year 1999 and at that time he had given a blank cheque of
his signature to Kantilal and Kantilal was in prison on the accusation of
misappropriation, therefore the complainant being a friend of Kantilal he
had handed over the said cheque to the complainant. The complainant
admitted that he was having pigmy account with Kantilal. In view of the
said admission the case put up by the accused appears to be true. Thus,
the entire case put up by the complainant appears to be under the shadow
of doubt.
8] So far as the scope of Section 138 of the Negotiable Instruments
6 Judg cri. apeal 519.04.odt
Act is concerned, in order to invoke the said provisions, it is necessary to
prove that cheque must have been given by the accused to the
complainant drawn on any bank, for the discharge of liability or debt.
Section 139 of the said Act a presumption is attached that when any
cheque is given by one person to another then it is presumed that the said
cheque is given for discharge of liability or debt unless contrary is proved.
In the instant case handing over of the cheque by the accused to the
complainant is in dispute. The complainant has to therefore prove that
the cheque was handed over by the accused to him. It is not proved by the
complainant that the accused has handed over the said cheque to him. It
is discussed above that the cheque was issued from the cheque book of
the year 1999 wherein the date was written as 28-02-2002 and according
to the accused the blank cheque was issued to Kantilal, for the loan which
he had taken from him in the year 1999 and as Kantilal was in jail, the said
cheque was handed over by the accused to the complainant, being a
pigmy account with Kantilal. According to the accused, the cheque was
not given towards the discharge of the liability, therefore, the burden lies
on the complainant as per the provisions of Section 139 of the said Act.
However, as discussed above the case of the accused that, he had
handed over a blank cheque to Kantilal, appears to be true and it appears
that the said cheque was misused by the complainant. The fact that the
contents in the cheque were written in different ink and the signature of
the accused is found on different ink lends support to the case of the
accused. As it is the case of the complainant that he filled in the contents
7 Judg cri. apeal 519.04.odt
in the cheque and thereafter he obtained signature of the accused on the
said cheque, in that case the signature would have been of the same ink
which was used by the accused for filling the contents in the cheque. The
case put up by the accused appears to be probable one, that in the year
1999 he had handed over a blank cheque to Kantilal. Thus, the
complainant has failed to prove his case that the accused had handed
over the cheque of Rs.75,000/- which was dishonoured. Since it is not
proved by the complainant that the cheque was given by the accused to
him, therefore the presumption under Section 139 of the said act does not
arise. Thus, the offence under Section 138 of the Negotiable Instruments
Act, is not proved by the complainant.
9] The learned Counsel for the complainant has placed reliance upon
the judgment in the case of P.K. Manmadhan Kartha vs. Sanjeev Raj and
another, reported at (2002) 7 SCC 150. The facts of this case are totally
different than this case. In the cited case there was no evidence to show
that the cheque was issued prior to the closure of the account. Hence,
considering the said aspect and also considering that there was difference
in handwriting and in ink of the cheque, the Hon'ble apex Court has
remanded the matter back for disposal in accordance with law after
affording opportunity to both the sides and setting aside the order of
conviction and sentence. Here, there is no such case of closing of the
account. In the present case, the facts and circumstances are totally
different. Hence, the law laid down by the Hon'ble apex Court is not
applicable to the case in hand.
8 Judg cri. apeal 519.04.odt
10] I do not find any illegality or perversity in the judgment passed by
the learned trial Judge. 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 a view taken by the lower
Court, unless the view taken by the lower Court is illegal, perverse or
against the principle of law.
11] There are no sufficient grounds made out by the appellant to
interfere with the impugned judgment and order. In these circumstances,
the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE
Deshmukh
