Bombay High Court

Prabhakar S/O. Janardhan Kale vs Smt. Sadhana W/O. Ashok Urkude on 6 November, 2017

Bench: R. B. Deo

 appeal500of06.odt                         1




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


                     CRIMINAL APPEAL NO.500 OF 2006


 Shri. Prabhakar S/o. Janardhan Kale,
 Aged 51 years,
 Occupation : Service,
 Resident of Plot No. 2 & 3, 
 Shilpanikat Apartments
 Naik Layout, Subhash Nagar, 
 Nagpur.                                                                 .APPELLANT


          ...V E R S U S...


 Smt. Sadhana W/o. Ashok Urkude,
 Aged about 42 years,
 Occupation : Business,
 Proprietor M/s. Sadhna Collections,
 Resident of 357, Kukde Layout, 
 Bhagwan Nagar, Nagpur.                                              ...RESPONDENT

 -------------------------------------------------------------------------------------------
          None for Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                        ROHIT B. DEO, J.

DATE:

NOVEMBER 06, 2017

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 19.5.2006 delivered by 2nd Joint Civil Judge Junior Division

& Judicial Magistrate First class, (Special Court), Nagpur in

Summary Criminal Case 4111 of 2005, acquitting the respondent

(hereinafter referred to as "the accused") of offence punishable

under section 138 of the Negotiable Instruments Act, 1881("Act"

for short.

2 The appeal was called out for hearing on 30.5.2017

and then on 8.9.2017. There was no appearance on behalf of the

appellant or the respondent on both the dates of hearing. This

Court directed the appellant to pay costs of Rs. 201/- and

adjourned the hearing to week commencing 25.9.2017. The

appeal was called out on 30.9.2017 and again there was no

appearance either for the appellant or for the respondent. The

appeal was then called out on 12.10.2017, the learned counsel for

the appellant undertook to collect the paper book and to deposit

the costs. Although, the learned counsel for the appellant did

deposit the cost, the paper book was not collected and when the

appeal was called out for hearing on 30.10.2017, again, there was

no appearance on behalf of both the appellant and the respondent.

This Court adjourned the hearing to 6.11.2017 and since there

was no appearance on behalf of the appellant or the respondent,

requested the learned Additional Public Prosecutor Ms. Trupthi

Udeshi to assist the Court.

With the able assistance of the learned Additional Public

Prosecutor Ms. Trupthy Udeshi, I have scrutinized the record and

this appeal is being decided on merits.

3 The appellant (hereinafter referred to as "the

complainant) preferred a complaint under section 138 read with

section 142 of the Act, inter-alia contending that he was

introduced to the accused by a relative Smt. Vishakha Dhanvijay.

The said relative is a friend of the accused, is the averment in the

complaint. The accused is engaged in business of ready made

garments under the name and style M/s. Sadhana Collection. The

accused needed financial assistance to manage and expand the

said business and visited the house of the complainant alongwith

Mrs. Vishakha Dhanvijay in the month of June 1999 and requested

for financial assistance of Rs. 60,000/-. The complainant gave the

accused Rs. 60,000/- in cash as hand loan on 28.6.1999 which

amount the accused promised to repay within two years, is the

averment in the complaint. The complainant has averred that he

arranged the said amount by obtaining loan from a cooperative

society.

The complainant contends that between 1999 to 2001, the

complainant borrowed various amounts from time to time

aggregating Rs. 4,88,000/-. The accused issued cheque 928874

dated 8.5.2003 for Rs. 4,50,500/- towards refund of the said

amount since the accused had already repaid Rs. 20,300/- by

cheque/s and Rs. 17,200/- by cash from time to time during the

period 2001-2002. The said cheque was presented on 9.5.2003,

the cheque was returned with endorsement "account closed". The

complainant issued the statutory notice, since there was no

compliance with the notice, the complainant set in motion

proceedings under the Act.

4 The defence of the accused, who stepped into the

witness box is that she did not have any direct dealing with the

complainant and that she obtained a loan of Rs. 40,000/- through

Smt. Vishakha Dhanvijay out of which she returned Rs. 37,500/-

and gave a blank cheque as security. The accused contends that

she did sign the blank cheque, however, the rest of the contents of

the cheque were not filled in.

5 In the cross-examination of the complainant, the

complainant admits that there is no documentary evidence to

show that he extended a hand loan of Rs. 4,88,000/- to the

accused. The complainant contends that he arranged the said

amount of Rs. 4,88,000/- by withdrawing money from GPF

account, and availing financial assistance from ICICI bank, credit

card, irrigation management society and from two friends namely

Vinod Khobragade and Vaidya. The complainant states that he

also used credit card facility extended by State Bank of India.

However, the complainant has not filed any document to

substantiate the said contention, is the admission in the cross-

examination. The following relevant admissions are extracted in

the cross-examination of the complainant:-

"I am an employee of Water Resources Department. I draw salary of about Rs.21,000/- per month"

"It is true to say that there is a difference in the colour of ink regarding the date, amount in figure and signature of accused on Exh. 24. I can not say whether there is a difference in handwriting style on date and amount in figure on Exh. 24. I do not feel that there is a difference in handwriting style as regards to the document at Exh. 24".

6 The learned Magistrate has recorded a finding of fact

that the accused has not proved that the disputed cheque was

issued towards discharge of existing liability. The learned

Magistrate has inter-alia observed thus in paragraphs 15 to 18:-

Paragraph 15 "On scrutiny of evidence of the complainant and accused and

on going through the ruling cited by the Advocates of both sides, I find that the complainant is a Government Servant and getting a salary of Rs. 21,000/- per month. The admission of the complainant about the payment of Rs. 60,000/- for the first time to the accused show material contradiction in his pleading and the evidence about the arrangement made by him of Rs. 60,000/-. The evidence of complainant further shows that he was not knowing the accused prior to 1999. He came to know about the accused only through his sister in law Vishakha Dhanvijay. Even then on the say of Vishakha Dhanvijay, he has paid the amount of Rs. 60,000/- to the accused for two years in the year 1999 i.e. without interest. Admittedly, for the sake of argument the evidence of complainant about the payment of Rs. 60,000/- for two years in June 1999 is to be correct,even then his further evidence shows that the accused fails to repay his first handloan of Rs. 60,000/- within a period of two years. Even then he was going on to pay the huge amount of Rs. 4,88,000/- to the accused without obtaining any receipt or documentary evidence. Therefore, the story of complainant did not inspire a confidence".

Paragraph 16 "It is pertinent to note here that as per the evidence of complainant he has paid the total amount of Rs. 4,88,000/- to the accused from June-1999 to 23.11.2002 in 23 installments. However, he did not obtain any single receipt from the accused at any time. The evidence of complainant

further shows that the amount paid by him to the accused of Rs. 4,88,000/- was secured by taking a loan from time to time from his I.C.I.C.I. Bank, State Bank of India, society, from his G.P.F. account and also from relatives. It shows that for arrangement of the said amount to pay to the accused, the complainant has to pay interest to his Bank and Society. However, the complainant has not charged or claim any interest from the accused for the reason known to him".

Paragraph 17 "The evidence of complainant further shows that he is not having any direct relations with the accused, even then for about a period of three years he used to pay the amount to the accused on her demand without obtaining any receipt. All the above facts and evidence of the complainant creats a doubt about his trustworthiness, as he did not produce any documentary evidence on record, in support of his contentions, nor examined any of his relative to show that his relative has paid the amount to the complainant to pay it to the accused".

Paragraph 18 "It is further necessary to note down that through out the complaint or through out the evidence, the complainant has not stated specifically when the accused have handed over him a disputed cheque Exh. 24. The admission of the complainant and the document Exh. 24 itself shows that there is a difference in the ink of signature of accused and the other contents of the body of the cheque. For the sake of argument

as per the ratio of ruling of Madras High Court Reported in 2005(1) DCR 219 or another ruling of 2005(1)DCR 85 on which the complainant placed his reliance, it is presumed that there is no necessity ffor the complainant to prove that the body of the cheque should be written by the drawer of the cheque only. Even then in the light of above facts and circumstances, I hold that, the evidence of complainant did not appeal to the mind of prudent person, and appears to be suspicious. On the other hand the evidence of accused appears to be more trustworthy than the evidence of complainant".

7 I have given my anxious consideration to the evidence

on record and the findings recorded by the learned Magistrate.

The view taken is certainly not perverse. The version of the

complainant that he extended hand loan to the accused, and that

too a substantial amount of Rs. 4,88,500/- without executing any

document, and in cash, is doubtful. The claim of the complainant

that he arranged for the said amount by borrowing from

cooperative society, ICICI bank, withdrawing from GPF account

and availing credit card facility, is difficult to accept. The

appreciation of evidence by the learned Magistrate is

unexceptionable. Be it noted, that at one point, the complainant

has admitted that the contents of the disputed cheque are in