Bombay High Court
Smt. Smita Dilipkumar Bora vs Shrikant S. Thodge & Anor on 15 September, 2017
Bench: R. B. Deo
apeal509.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.509 OF 2006
Smt. Smita Dilipkumar Bora,
Aged about 42 yrs.,
Occ: Household work,
R/o Peshve Plots, Yavatmal,
Tah. & District Yavatmal. ....... APPELLANT
...V E R S U S...
1] Shrikant S. Thodge,
Aged about 45 years,
Occ: Business,
R/o 42, Shrikrishna Society,
Arni Road, Yavatmal,
Tah. & District Yavatmal.
2] State of Maharashtra. ....... RESPONDENTS
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Ms. Zeba Khanam, Advocate holding for Shri Firdos Mirza,
Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent No.2/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
15 SEPTEMBER, 2017.
ORAL JUDGMENT
1] Challenge is to the judgment and order dated
11.11.2005 delivered by the learned Judicial Magistrate First
Class, Yavatmal, in Summary Complaint Case 835/2005, by and
under which, the respondent 1-accused is acquitted of offence
punishable under section 138 of Negotiable Instruments Act,
1881.
2] Heard Ms. Zeba Khanam, the learned counsel holding
for Shri Firdos Mirza for the appellant. None appears for the
respondent 1. Shri H.R. Dhumale, the learned Additional Public
Prosecutor for the respondent 2/State.
3] The genesis of the prosecution is the statutory notice
issued by the appellant to the respondent 1 which is at Exh.34 in
the record of the Trial Court.
4] The notice dated 14.02.2005 contends that the
husband of the appellant-original complainant who died
on 25.07.2001, had during his life time, deposited Rs.8,00,000/-
with the respondent 1-accused. The notice contends that the
respondent 1 promised to pay the said amount to the complainant
as and when demanded. The appellant-complainant was in need
of money and hence demanded the said amount on 18.01.2005.
The notice further states that the respondent 1 issued five cheques
in favour of the appellant-complainant drawn on the United
Western Bank Ltd. Branch at Yavatmal. The disputed cheques are
bearing number 876053 of Rs.3,00,000/- and bearing number
074726 of Rs.2,00,000/-.
5] The statutory notice further recites that the
aforementioned two cheques were presented to the United
Western Bank Ltd. Branch at Yavatmal on 18.01.2005. Both the
cheques were dishonoured due to insufficient funds in the account
of the respondent 1. By the statutory notice, the respondent 1 was
asked to make the payment of Rs.5,00,000/- covered by the two
cheques within the prescribed period.
6] The notice dated 14.02.2005 issued by the appellant
met with a response dated 22.02.2005 in which the respondent 1
contended that while the husband of the appellant-complainant
had indeed deposited Rs.8,00,000/-, the entire amount stood
paid. The respondent 1 stated that Rs.3,00,000/- was paid to the
husband of the complainant by cheque 70101 dated 23.04.2001,
which is duly encashed. The balance amount of Rs.5,00,000/- is
paid to the appellant on 27.03.2002. The respondent 1 therefore,
contended that there is no legally enforceable liability or debt
against which it could be said that the disputed cheques were
issued. The respondent 1 claimed in the reply that as security for
deposit of Rs.8,00,000/-, five cheques with the amount filled in
and the name of the payee and date left blank were handed over
to the husband of the appellant-complainant. The suggestion is
that despite receiving the refund of the entire deposit of
Rs.8,00,000/-, the cheques offered as security were being
misused.
7] The complainant has examined herself and one
Nandkumar Sampatlal Bora, the brother of her late husband. It is
not in dispute that Rs.8,00,000/- was deposited by the husband of
the complainant with the respondent 1. According to the
appellant, the amount of Rs.8,00,000/- was not the only amount
deposited with the respondent 1. Ms. Khanam, the learned
counsel submits that if Rs.8,00,000/- was the only amount
deposited by the husband of the appellant-complainant, it is
improbable that the respondent 1 would issue the cheques in
favour of the appellant in the year 2005. But then, this submission
ignores the defence that the five cheques were given to the late
husband of the appellant-complainant as security and that the
date and the name of the payee were left blank.
The appellant-complainant has herself stated in the statutory
notice that during the life time of the husband of the appellant
Rs.8,00,000/- was deposited with the respondent 1. In the teeth of
the said statement and the admission of the appellant that she was
not aware that an amount of Rs.3,00,000/- was paid by the
accused to her husband in the year 2001, the finding recorded by
the learned Magistrate that there was no legal enforceable debt, is
a possible and plausible finding.
8] Ms. Khanam, the learned counsel for the appellant
would submit that the learned Magistrate has not appreciated the
import and implication of sections 118 (a) and 139 of the
Negotiable Instruments Act, 1881. She would submit that the
accused has not discharged the statutory burden of proving that
the cheques were not issued towards satisfying legally enforceable
debt or liability. I do not agree with the said submission in as
much as the learned Magistrate was indeed alive to the legal
position and the import and implication of the aforesaid
provisions. The learned Magistrate held, and rightly so, that the
statutory presumption can be rebutted by the accused with the aid
of material which is either placed on record by the complainant or
which is brought on record during the cross-examination of the
complainant or the other witnesses. It is not necessary that the
accused should enter the witness box or lead defence evidence.
9] I do not see any perversity in the judgment of
acquittal. Since a possible view is taken, I am not inclined to
interfere with the judgment of acquittal.
10] The appeal is sans merit and is rejected.
JUDGE
NSN
