P.P. Sudhakaran vs Mrs. Shyla Sathyan
2017 Latest Caselaw 8307 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 8 OF 2016



 Mr. P.P. Sudhakaran,
 Aged about 67, Occupation - Business, 
 R/o Near Royal Computers, 
 Quarter No.4/62, Raje Raghuji Nagar, 
 Hanuman Nagar, Nagpur.                                         ....       APPELLANT


                     VERSUS


 Mrs. Shyla Sathyan,
 Aged about 54 years, Occ. - Business, 
 R/o Plot No.3, 181/182, Sarjugopi 
 Apartment, Ring Road, Trimurti Nagar,
 Nagpur.                                                        ....       RESPONDENT

 ______________________________________________________________

            Shri G.N. Khanzode, Advocate for the appellant, 
                       None for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 1 NOVEMBER, 2017.

st

ORAL JUDGMENT :

Exception is taken to the judgment and order dated

22-8-2014 in Summary Criminal Case 20843/2013, delivered by the

learned 28th Judicial Magistrate First Class and Special Court acquitting

the accused of the offence punishable under Section 138 of the

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Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").

2. Heard Shri G.N. Khanzode, learned Advocate for the

appellant/complainant.

None appears for the respondent.

3. The case of the complainant is that he and the husband of

the accused are close friends since fifteen years. The complainant used

to help the accused to tide over financial difficulties. The complainant

contends that at the request of the accused, he extended financial help

from time to time totalling Rs.2,65,000/-. The accused assured to

repay the said amount within a year, which she failed to do. However,

since the complainant insisted on repayment, the accused issued two

cheques of Rs.2,00,000/- and Rs.65,000/-, both the said cheques were

dishonoured when presented for encashment. Statutory notice was

issued to the accused, there was no compliance and the complainant

instituted proceedings under Section 138 of the Act.

4. The defence of the accused is that there was no transaction

between the accused and the complainant. The accused contended

that she did not borrow any amount from the complainant. She further

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contended that she did hand over certain blank cheques to the

complainant as security for the loan extended by the complainant to

her husband.

5. The learned Magistrate noted that since the accused did

not deny signature on the disputed cheques Exhibit 20 and Exhibit 22,

the accused would have to rebut the statutory presumption under

Section 139 of the Act.

6. The complainant examined himself as C.W.1 and officials

of the bank Rajkumar Kesharwani and Pramod Bhosale as C.W.2 and

C.W.3 respectively.

7. The learned Magistrate has noted the following

circumstances pointed out by the accused in support of her submission

that the statutory presumption stood rebutted (a) the admission of the

complainant that he had advanced money to the husband of the

accused, (b) the admission of the complainant that he was unable to

state the dates on which the money was advanced to the husband of

the accused, (c) the contents of the cheques Exhibit 20 and Exhibit 22

are in different handwriting and ink suggesting that blank cheques

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have been misused, and (d) the complainant has not filed on record

account statement.

8. The learned Magistrate has, on a holistic appreciation of

evidence, recorded a finding of fact that the complainant had not

transacted with the accused, but with her husband. The learned

Magistrate does record a finding that the suggestions given by the

accused to the complainant would show that the accused handed over

the disputed cheques to the complainant as security for the amount

advanced to her husband. The learned Magistrate has noted the

judgment of this Court in Hiten Sagar vs. I.M.C. Ltd., 2001 Cri.L.J.

4311, to hold that the drawer of the cheque cannot be held

accountable for discharge of liability of some other person without an

inter se agreement to the said effect. The learned Magistrate noted that

there is no evidence to suggest that the accused undertook to discharge

the liability of her husband.

9. The learned Magistrate, has even otherwise, recorded a

finding that the complainant failed to prove that he lent the amount of

Rs.2,65,000/- to the accused. The learned Magistrate has noted the

failure of the complainant to produce the accounts and in particular the

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failure of the complainant to produce on record the income tax returns

despite having claimed to have disclosed the loan transaction in the

income tax returns. The learned Magistrate has further noted that the

contents of the disputed cheques are in different ink. The learned

Magistrate has acquitted the accused holding that the evidence on

record is insufficient to prove that the disputed cheques were issued

towards discharge of legally enforceable debt or liability.

10. Since the view taken is not perverse, I am not inclined to

interfere with the judgment of acquittal.

11. The appeal is without substance and is rejected. Bail bond

of the accused shall stand discharged.

JUDGE adgokar