Nitin S/O Prabhakar Vaidya vs Ashok Mahadeorao Panchbudhe
2017 Latest Caselaw 8397 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 116 OF 2006


 Nitin s/o. Prabhakar Vaidya,
 Aged about 40 years,
 Occupation : business,
 R/o. 4, Corporation Colony,
 North Ambazari Road,
 NAGPUR - 10.                                                ....       APPELLANT


                     VERSUS


 Ashok Mahadeorao Panchbudhe,
 Aged about : 55 years,
 Occupation : Service,
 R/o. Shree Apartment, Flat No. 301,
 Kailash Nagar Chowk,
 Old Subhedar Layout, NAGPUR                                 ....       RESPONDENT

 ______________________________________________________________
             Mr. S.K. Sabhahatulla, counsel for Appellant.
          Mrs. Kalyani Dharashivkar, counsel for Respondent.
 ______________________________________________________________


                                        CORAM  :  ROHIT B. DEO, J.

                                        DATED    :    3
                                                         rd   NOVEMBER, 2017


 ORAL JUDGMENT : 

The appellant is aggrieved by judgment and order dated

5.10.2005 passed in Summary Criminal Case 764 of 2005, delivered by

the Judicial Magistrate First Class, (Court-23) Nagpur, acquitting

respondent / accused of offence punishable under section 138 of the

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Negotiable Instruments Act, 1881 ("Act" for short).

2 The appellant (hereinafter referred to as "the

complainant") instituted complaint inter-alia under section 138 read

with section 141 and 142 of the Act against the respondent

(hereinafter referred to as "the accused"), the gist of which complaint is

that the accused who is an employee of the State Bank of India

borrowed Rs. 60,000/- from the complainant on 28.10.1998 as

handloan. The accused is a relative of the complainant. The

complainant advanced a handloan of Rs. 60,000/- in cash to the

accused and the accused promised to repay the handloan within a short

period.

The accused issued cheque 129740 for Rs. 60,000/- on

14.8.2000 towards discharge of the said loan. The cheque was dis-

honoured with the endorsement "alteration required full signatures"

and "cheque is out of date". The complainant noticed that the returned

cheque revealed overwriting and scratching in the column of the date

and the amount. It is the case of the complainant, that the accused

misused his position as an employee of State Bank of India and altered

and scratched the contents when the cheque was forwarded for

clearance to State Bank of India.

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 3                 The   complainant   lodged   a   police   report   on   22.8.2000

alleging cheating and also lodged complaints with the superior of the

accused. The complainant issued statutory notice on 31.8.2000. The

accused did not comply, hence the complainant set in motion the

process of law.

4 The complainant examined himself as CW 1. The

examination in chief is broadly consistent with contents of the

complaint. It is elicited in the cross-examination of the complainant

that the loan transaction is not documented. The attention of the

complainant was invited to Exh. 35 and the complainant stated that

Exh. 35 is the original cheque. The complainant denied the suggestion

that the date 14.8.2000 on Exh. 35 is not in the handwriting of the

accused. The complainant further denied the suggestion that the

amount in words and figure in Exh. 35 is altered by the complainant

which led to the dis-honour of the cheque. The complainant admits to

have instituted a separate complaint on the basis of the cheque return

memo Exh. 32 against the accused alleging commission of offences

under sections 418, 420, 468 and 489 of the Indian Penal Code. The

complainant admits that the report lodged at the Ambazari Police

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Station was prior to the institution of the complaint under section 138

of the Act. The complainant admits that the order of issuance of

process restricted to under section 138 of the Act and the order framing

particulars of offence Exh.5 were not challenged by the complainant.

He further admits that the order of rejecting the application for

addition of charges was also not challenged. The complainant admits

that criminal complaint 87 of 2003 - State Vs. Ashok and the complaint

under Section 138 of the Act are based on the same disputed cheque.

He denies the suggestion that in view of the property dispute, he has

resorted to altering contents of the dispute cheque and has falsely

implicated the accused.

5. The complainant has examined Dilip Govindrao Raikwar

CW 2. The said witness is an official of Punjab National Bank. He was

shown Exh. 35 and he states that Exh.35 is the image copy of the

cheque forwarded to Punjab National Bank by the service branch of the

State Bank of India. CW 2 has deposed that whenever cheque is

presented for realization, the same is forwarded to service branch of

the bank on which the cheque is drawn and after cheque is

forwarded by the said service branch to the Punjab National Bank,

the same is processed and an image copy is retained in

record. CW 2 states that after processing the cheque, the

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same is returned to concerned service bank of the bank. In the cross-

examination, CW 2 admits that when Exh.35 was received by Ghat

Road Branch of Punjab National Bank, he was not on duty in the said

branch. He admits that he has not photocopied cheque Exh.35. He

further admits that unless and until he peruses the original cheque, he

cannot tell whether the photocopy is correct or not. He admits that he

has not seen the original of Exh.35 and has no knowledge as regards

the same.

6. The defence of the accused, as is discernible from answer

to question 18 in the examination under section 313 of the Criminal

Procedure Code, is that he is falsely implicated in view of family

dispute.

7. The learned Magistrate has on a holistic and considered

appreciation of evidence on record, recorded a finding that the

complainant failed to prove that the disputed cheque was dishonoured

due to insufficient funds in the account of the accused. The learned

Magistrate further recorded a finding that the cheque dated 10-2-2000

was deposited on 16-8-2000, beyond validity period of six months. In

view of the aforesaid two finding, the learned Magistrate was pleased

to dismiss the complaint.

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8. I have given my anxious consideration to the evidence on

record and having done so, I am of the opinion that the finding

recorded by the learned Magistrate is not only a possible view, but is

the only view which could have been taken in the teeth of the evidence

on record. The complainant failed to produce on record the original

cheque. Concededly, Exh. 35 is an image copy. The disputed cheque is

not dishonoured due to insufficient funds. The reasons given for

dishonour are two fold. The first reason is that the alterations are not

counter signed and the second reason is that the cheque is presented

beyond the validity period.

9. It is axiomatic that the cheque is returned since the

contents are altered, and interpolated. The complainant has not

proved that the alteration and interpolations have been done by the

accused after the cheque was forwarded to the State Bank of India. The

fact that the accused is an employee of State Bank of India is not

enough to draw an inference that the accused is responsible for the

alteration and interpolations in the disputed cheque. The finding of the

learned Magistrate that the cheque was deposited beyond the validity

period of six months is unexceptionable.

The judgment impugned is certainly not perverse and I do not

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see any compelling reason to interfere in the judgment of acquittal.

The appeal is sans merit and is rejected.

Bail bond of the accused shall stand discharged.

JUDGE

Belkhede