Annu Investment & Finance Co vs Sanjay Rajkumar Khanna And Othr
2017 Latest Caselaw 9028 Bom

                                                                                                            CRI.APPEAL.632.06
                                                                       1


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

                                           CRIMINAL APPEAL NO. 632/2006

            Annu Investment & Finance Co.
            108, Handloom Market, 1st floor
            Gandhibagh, Nagpur
            Through its Proprietor
            Mahendra Bhavarlal Asani.                                                             .. APPELLANT

                        versus

1)          Sanjay Rajkumar Khanna
            Aged major, C/o Siddarth Ramteke
            Saibaba Ward,Near Janata School
            Ballarpur, Dist. Chandrapur,

2)          State of Maharashtra                                                              .. RESPONDENTS

...............................................................................................................................................
            Mr. R.M. Patwardhan, Advocate for appellant
            Advocate for respondent no.1 absent.
            Ms. N.P. Mehta, Additional Public Prosecutor for respondent no.2
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

                                                                           DATED:          24th November, 2017

ORAL JUDGMENT:

1. This Appeal has been preferred by the original complainant against the

judgment and order dated 25th August 2006, delivered in Summary Criminal Case No.

9109/2005 passed by the learned Judicial Magistrate, First Class, (Spl.Court), Nagpur, thereby

acquitting the respondent no.2 ( hereinafter referred to as "the accused"), under Section 138

of the Negotiable Instruments Act, 1881 (in short,"N.I.Act").

CRI.APPEAL.632.06

2. The complainant's case, in brief, is that the complainant-firm is a

Finance Company under the name and style, "Annu Investment & Finance Company ",

at Nagpur and used to provide financial assistance to needy persons who want to

purchase vehicle on hire-purchases basis, on completion of necessary formalities and

on execution of required documents. The accused was in need of financial

assistance for purchase of the vehicle bearing Registration No. MH-31/ W-2599 Tata

L.P. Truck, Model 1991. Therefore, he approached the complainant and applied for

the loan. The complainant on completing necessary formalities and executing the

required documents, provided financial assistance to the accused by way of

installments, with interest. Towards repayment of the amount, the accused issued a

cheque bearing No. 074086 dated 22.8.2005 for Rs. 59,000/- drawn on Bank of

Maharashtra, Ballarshah, Dist. Chandrapur in favour of the complainant. The cheque

was deposited by the complainant for its encashment with its bankers i.e. Wardhaman

Urban Cooperative Bank Limited, Nagpur. However it was returned unpaid as

dishnoured by the bankers of the accused to the banker of the complainant, with its

memo dated 6th September, 2005 mentioning the reason as "insufficient funds".

Subsequently, the bankers of the complainant returned the cheque back to the

complainant as unpaid. The complainant, therefore, issued a legal notice by registered

post acknowledgment due on 21.9.2005 calling upon the accused to pay the

dishonoured cheque amount. The said notice was returned back unserved with

remarks as "not claimed", on 30.9.2005. The complainant waited for fifteen days

notice period and as no payment was made by accused, filed the complaint.

CRI.APPEAL.632.06

3. Learned Judicial Magistrate, after framing the charge and upon

recording the evidence of the complainant and the accused and on hearing both the

sides, acquitted the accused of the offence punishable u/s 138 of the N.I. Act.

4. Heard Mr.R. M.Patwardhan, learned counsel for appellant and Miss

N.P. Mehta learned APP for respondent no.2-State. The respondent no.1 and his

counsel remained absent. With the assistance of both the counsels, I have gone

through the entire record of the case meticulously.

5. Mr. Patwardhan strenuously argued that the learned trial court has not

considered the evidence on record in its right perspective and has wrongly come to

the conclusion that although according to the complainant the outstanding amount

was Rs. 66,700/-, the cheque was allegedly of the amount of Rs. 59,000/- for which the

complainant has not extended any explanation in that regard. He further argued that

the accused has not substantiated his case as to why as many as ten cheques were

issued by him and were deposited with the complainant. Even the accused has not

produced any medical evidence to show that he was suffering from illness and,

therefore, he was unable to repay the outstanding amount. The learned A.P.P., on the

other hand, has supported the judgment of the trial Court.

6. After hearing on both the sides and on a perusal of evidence on record

as well as the impugned judgment, it is noticed that the learned trial Court has

carefully gone through the evidence adduced on record. On a perusal of the record,

it is noticed that there are certain admitted facts which can be enumerated as under:-

CRI.APPEAL.632.06

(i) Accused has admitted his signature on the disputed cheque (Exh.31).

(ii) Accused has admitted that he has taken a loan from the complainant to

purchase the vehicle.

(iii) It is also admitted that there was execution of deed of hypothecation

agreement as per Exh.29 and the accused remained in arrears of repayment

of installments.

7. Exh. 29 demonstrates that the accused has agreed to repay the loan

amount to the complainant in 24 installments including the principal amount and

interest. The accused agreed to pay fourteen installments of Rs. 7000/- out of 24

installments. Remaining ten monthly installments of Rs. 6,600/- were also agreed to be

repaid. Thus, the total amount of Rs. 1,64,000/- was towards the repayment of the

loan of Rs,.1,20,000/- as agreed by the complainant. Exh.30, the extract of account

relied upon by the complainant, shows that on 21.6. 2005 the amount of Rs. 66,700/-

remained balance against the accused. However the disputed cheque (Exh.31) is of

Rs. 59,000/- only. It is not clear from the evidence on record as to why the

complainant has obtained the cheque of Rs. 59,000/- from the accused on 22.8.2005,

when the amount of Rs. 66,700/- was outstanding against the accused on 21.6.2005,

as per the statement of account.

8. So far as the case of the accused is concerned, the accused has put

up a defence that the cheque (Exh. 31 ) was a blank cheque and it was bearing his

signature. According to the accused, the said cheque was given by him to the

CRI.APPEAL.632.06

complainant as a security when he obtained the loan from the complainant. He further

stated that he has paid some installments regularly. However he could not pay the

remaining amount due to the life threatening ailment of kidney, for which he was

hospitalized for a long duration. According to the accused, the complainant has

misused the blank cheque bearing his signature which was given towards security

only. It is the specific case of the complainant that he never issued the said cheque in

favour of the complainant towards the discharge of any liability as such. The

complainant comes up with a case that when the notice was issued by the

complainant as the accused was hospitalized, there was an endorsement in the

notice as "not claimed". The testimony of the complainant depicts that when the

accused failed to pay the installments on due dates and when he remained under the

arrears of installment, the complainant did not issue any notice calling upon him to

deposit the balance amount of installment. Significantly, the complainant has not

stated in his evidence that on account of failure of the accused to pay the installments

regularly, the accused has drawn the cheque (Exh.31) for payment of outstanding

amount of installment. Thus, there is no evidence on record to show that there was

outstanding amount of Rs. 66,700/- and in these circumstances, it is not clear as to why

the cheque amount of Rs. 59,000/- was accepted by the complainant. As stated above,

the complainant never asked the accused to pay the balance amount of installments

which he remained in arrears. In these circumstances, it is not clear as to how and

when the accused has drawn the cheque (Exh.31) in favour of the complainant.

9. It is worthy to note that the cheque (Exh.31) depicts that different ink is

CRI.APPEAL.632.06

used while the cheque was signed. So also, there is difference in ink when the date as

well as the amount was written on the cheque in question. The cheque also depicts

that instead of complainant writing the name of the Finance Company, stamp of the

said company was put on the said cheque. It is undigestable that the accused was

having the stamp of Finance Company with him when he signed the said cheque.

From the aforesaid evidence, it is amply clear that the stamp of the Finance company

was put up on the cheque (Exh.31) subsequently in the absence of the accused. So

also, the contents of the date and the amount were also written by the complainant in

the absence of the accused. In these circumstances, the case put up by the accused

appears to be more plausible than the case relied upon by the complainant. As it is

already discussed above, the accused has put up his case that the disputed cheque

was a blank cheque and it was given by him to the complainant and the contents of

the cheque were filled in by the complainant in his absence. The said case put up by

the accused appears to be convincing. In this context, it is well-settled that the

accused has not to prove his case beyond reasonable doubt and he has to simply

show the preponderance of probability.

10. Thus, the learned trial Judge has rightly come to the conclusion that the

complainant failed to prove his case beyond reasonable doubt.

11. By now, the law is well-settled in respect of the appeal against

acquittal. Merely because, the other view is possible that itself is not sufficient for the

Appellate Court to record a different finding that though the Appellate Court has full

power to re-appreciate the entire prosecution case. For exercising the appellate power,

CRI.APPEAL.632.06

the judgment appealed against, has to be perverse one or the view taken by the Court

below is impermissible on the basis of the evidence that is brought on record. In my

view, the learned Magistrate of the Court below has correctly appreciated the facts

brought on record by the prosecution. On re-appreciation of the entire prosecution

case, I am of the view that, nothing is brought on record to upset the finding and order

of acquittal passed by the learned Magistrate. Consequently, the Appeal fails and is

dismissed.

JUDGE

sahare