Manoj S/O Pralhadrai Madhwani ... vs Shri Jagdish S/O Khushal ...
2017 Latest Caselaw 8048 Bom

                                 1                                       apeal342of14



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 342 OF 2014


 Manoj s/o. Pralhad Madhwani,                     ......(DEAD)
 aged about 45 years,
 R/o. Shivaji Nagar Tumsar 
 (P.S. Tumsar) Dist. Bhandara

          LR's of appellant

          Yogesh S/o. Manoj Madhwani,             ....(amendment carried
          aged about 21 years,                         out as per Court's
          Occupation : Business,                       order dated 2.4.2014)
          R/o. Shivaji Nagar, Tumsar,
          (P.S.Tumsar), 
          District Bhandara                               ....     APPELLANT


          Versus

 1        Shri. Jagdish S/o. Khushal Wairagade,
          Aged : Major, Occupation : Business,
          R/o. Nehru-Vivekanand Nagar,
          Tumsar (P.S.Tumsar) Dist. Bhandara

 2        The State of Maharashtra,
          through G.P. Nagpur.                            ....       RESPONDENTS


 ______________________________________________________________
           Mr. Krishna S. Motwani, counsel for the appellant.
                         None for respondent 1.
      Mr. A.V. Palshikar, Addl. Public prosecutor for respondent 2.
 ______________________________________________________________

                                      CORAM   :ROHIT 
                                                        B. DEO, J.

DATE :11.10. 2017

2 apeal342of14

ORAL JUDGMENT :

Challenge is to the judgment and order of acquittal dated

12.4.2012 in Summary Criminal Case 746 of 2007 delivered by Judicial

Magistrate First Class, Tumsar, by and under which, the respondent 1

(accused) is acquitted of offence punishable under section 138 of

Negotiable Instruments Act, 1881.

2 The gist of the case of the complainant is that the accused

was in need of money and requested hand loan of Rs. 50,000/- from

the appellant (complainant) in the month of January 2007. Towards

the refund of said hand loan, the accused issued cheque dated

24.5.2007. The complainant deposited the said cheque for encashment

with Bhandara District Central Cooperative Bank Limited, Bhandara on

30.5.2007. The cheque was dishonoured, which information was given

to the complainant by Bhandara District Central Cooperative Bank

Limited vide memo of return Exhs. 25 and 26. The complainant issued

registered notice dated 13.6.2007 seeking payment of the amount

covered by the cheque. The postal envelope was returned with

endorsement "unclaimed" on 28.6.2007. The complainant treated the

said endorsement as deemed service and instituted the complaint

under section 138 of Negotiable Instruments Act, 1881.

                                     3                                   apeal342of14



 3                 Evidence of the complainant is broadly consistent with the

 complaint.     The   accused   examined   himself   and   two   others   to

probabilize the defence. The defence of the accused is that he did not

receive any amount from the complainant much less as a loan. The

accused was a member of Voluntary Contribution Scheme managed by

the complainant. A dispute arose between the complainant and the

accused and the complainant misused a blank cheque which the

accused, like other members of the scheme, had deposited with the

complainant. The accused has deposed that at the relevant time an

amount of Rs. 7 lakh was the available balance in the account. He has

deposed that he did not receive notice nor did the postman make any

attempt to serve the notice. The other witnesses examined on behalf of

the accused have claimed to be members of the Voluntary Contribution

Scheme and have deposed on similar lines.

4 The learned Magistrate has noted that there is absolutely

no evidence on record to suggest that the cheque was presented to the

State Bank of India on which the cheque was purportedly drawn. The

return memos produced on record are issued by the Bhandara Central

Cooperative Bank. Apart from the fact, that no employee of the said

bank was examined to prove that the cheque was forwarded by

Bhandara Central Cooperative Bank to State Bank of India, the return

4 apeal342of14

memo does not indicate that the memo is based on information

received from State Bank of India.

5 The learned counsel for the appellant / complainant Shri.

K.S. Motwani was serious in contending that the accused is acquitted

on a technicality, I am not inclined to agree. In the context of the

defence that amount of Rs. 7 lakh was available in the account of the

accused, if there is no evidence whatsoever that the disputed cheque

was indeed ultimately presented to State Bank of India for encashment,

the very basic ingredient of an offence under section 138 of Negotiable

Instruments Act is not made out. That apart, even de hors the said

aspect, I find that the accused has probabilized the defence on the

touchstone of preponderance of probabilities.

The view taken by the learned Magistrate is not perverse. The

view is a possible view. I am not inclined to interfere in the judgment

of acquittal in the absence of any perversity.

The appeal is without substance and is rejected.

JUDGE

Belkhede