Bombay High Court
Iqbal S/O Gulamnabai Sheikh vs Madhukar S/O Gyaniram Sakhare on 21 September, 2017
Bench: Swapna Joshi
1 Judg cr app 254-07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 254 OF 2007
Iqbal s/o Gulamnabi Sheikh
Aged about 40 years, Occ: Business
R/o Deori, Tah. Deori,
District-Gondia. .... Appellant.
(Complainant)
-Versus-
Madhukar s/o Gyaniram Sakhare
Aged about 40 years, Occ.: Business
R/o Deori, Tah. Deori,
District-Gondia. .... Respondent.
(Accused)
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Smt. Priya Zoting, Advocate (Appointed) for the Appellant.
Shri S. N. Nandeshwar, Advocate for the Respondent.
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Coram : Mrs. Swapna Joshi, J.
Dated : 21
st
September, 2017.
ORAL JUDGMENT
This appeal has been directed against the judgment dated
8.5.2006 delivered by the learned Judicial Magistrate First Class, Sakoli in
Criminal Case No. 1796/2005, whereby learned trial Judge acquitted the
accused under Section 138 of the Negotiable Instruments Act.
2] Heard Smt. Priya Zoting, Advocate (Appointed) for the
appellant and Mr. S. N. Nandeshwar, for the accused.
3] The case of the Iqbqal Gulamnabi Sheikh (PW-1) is as under :-
The complainant and the accused were acquainted with each
other. The complainant used to give hand-loan to the accused. The
2 Judg cr app 254-07.odt
complainant gave hand-loan amount of Rs.10,000/-, Rs.5,000/-,
Rs.50,000/- and Rs.5,000/- on 15.4.2002, 30.5.2002, 1.7.2002 and
3.11.2002 respectively. On 16.6.2004, the accused came to the complainant
and demanded Rs.5,000/- and issued six cheques for Rs.2,000/- each of the
first date of each month from July to December, 2004 and also issued two
cheques of Rs.5,000/- each dated 1.1.2005 and 1.2.2005 respectively.
Accordingly, the complainant then handed over the amount of Rs.5,000/- to
the accused. It is the case of the complainant that again the complainant
handed over the amount of Rs.55,000/- to the accused. Thus, the
complainant gave total amount of Rs.85,000/- to the complainant.
4] On 19.2.2005, the accused asked the complainant to present
the said cheques in the bank for encashment. Accordingly, the complainant
presented those cheques in Dena Bank, Deori Branch. However, those
cheques were returned unpaid with remarks "there is no sufficient fund
available in the account of the accused". Therefore, on 3.5.2005 the
complainant sent a notice through his counsel to the accused thereby
demanding the said amount from him. However, the accused did not repay
the said amount. Hence, the complainant has filed complaint under Section
138 of the Negotiable Instruments Act, 1881 against the accused.
5] The charge was framed against the accused. The accused
pleaded not guilty to the charge levelled against him and claimed to be
tried.
3 Judg cr app 254-07.odt
6] The learned trial Judge on analysis of the evidence and after
hearing both sides, acquitted the accused as aforesaid.
7] In order to prove his case, the complainant has examined
himself and one witness who was Joint Accountant in the Bank. The
complainant has deposed before the Court as per the contents in the
complaint. The complainant has categorically stated that the accused had
issued cheques (Exh.14 to Exh.17) dated 1.9.2004, 1.10.2004, 1.11.2004
and 1.12.2004 respectively for Rs.2,000/-. On 31.3.2005 when the cheques
were presented in the bank for encashment, the cheques were returned to
the complainant, informing therein that there was 'no sufficient funds
available in the account of the accused', the complainant sent notice dated
3.5.2005 and demanded the amount of cheques. However, the accused did
not repay the amount of cheques. Hence, the complainant lodged the
complaint.
8] It is significant to note that during the cross-examination the
complainant has explicitly admitted that the cheques in the instant case
were given to him towards guarantee and security. The complainant denied
that he was given blank cheques. He further admitted that he is indulged in
the business of money lending and his licence of money lending business
was issued after the cheques were given by the accused to him. Thus, from
the testimony of the complainant makes amply clear that the accused had
given him cheques towards guarantee and security and the accused had not
issued those cheques for discharge of any debt.
4 Judg cr app 254-07.odt
9] So far as the testimony of witness no.2 is concerned,
according to him, he was working in the post of Joint Accountant in the
Urban Co-operative Bank, Bhandara, Branch Deori since the the year 2000.
The accused had a saving account no. 1728 in his bank and the cheques
issued by the accused were presented in the bank for encashment and the
same were returned unpaid due to non-availability of sufficient funds in the
account of the accused. He produced the copy of the statement of account
(Exh.36). No doubt, the testimony of PW-2 indicates that the cheques
tendered by the complainant and issued by the accused were bounced.
10] It is the specific case of the accused as seen from his evidence
that the complainant had lent him amount of Rs.10,000/- on interest and
had taken from him six blank cheques towards security. According to the
accused, the complainant withdrew the amount of Rs.10,000/- from the
account of the accused and, therefore, the accused owe no amount to the
complainant. The accused, admitted that he had taken hand-loan of
Rs.10,000/- from the complainant in the year 2002. However, he denied
that he had taken any amount from the complainant thereafter.
11] It is well settled that when two different view are possible one
in favour of the accused has to be accepted.
12] It is worthy to note that the complaint lodged by the
complainant itself depicts the complainant has contended that on 16.6.2004
the accused demanded amount of Rs.5,000/- from him, at that time the
complainant was not willing to give him Rs.5,000/-. However, the accused
5 Judg cr app 254-07.odt
gave him cheques of Rs.2,000/- each on 1.7.2004, 1.8.2004, 1.9.2004,
1.10.2004, 1.11.2004 1.12.2004 and also cheques of Rs.5,000/- each dated
1.1.2005 and 1.2.2005. Considering the credibility, the complainant gave
the amount of Rs.5,000/- to the accused on 16.6.2004. The said fact makes
amply clear that the dates in serial order 1.9.2004, 1.10.2004, 1.11.2004,
and 1.12.2004 (Exh.14 to Exh.17) mentioned on the cheques are not dates
of issuing concerned cheques. The complainant has himself stated that the
accused gave him the cheques from Exh.14 to Exh.17 towards guarantee on
16.6.2004 as stated the accused him cheque towards guarantee on
16.6.2004.
13] From the above said evidence, it cannot be said that the
accused issued the cheques (Exh.14 to Exh.17) on the given dates to the
complainant towards discharge of debt or liability on him. It is, therefore,
clear that those cheques were not issued by the accused, in accordance with
the provisions under Section 138 of the Negotiable Instruments Act. Section
138 of the Negotiable Instruments Act reads as under:
"138 ..... Dishonour of cheque for insufficiency, etc., of
funds in the account.-- Where any cheque drawn by a person
on an account maintained by him with a banker for payment
of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or
other liability, is returned by the bank unpaid, either because
of the amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an
agreement made with that bank, such person shall be deemed
to have committed an offence and shall, without prejudice to
any other provision of this Act, be punished with
imprisonment for [a term which may be extended to two
years], or with fine which may extend to twice the amount of
6 Judg cr app 254-07.odt
the cheque, or with both:
Provided that nothing contained in this section shall
apply unless--
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment of the
said amount of money by giving a notice in writing to the
drawer of the cheque, [within thirty days] of the receipt of
information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or as the
case may be, to the holder in due course of the cheque within
fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability".
14] In the instant case, the cheques were issued towards security
and guarantee and those cheques were not issued for discharge of debt or
liability of the accused. Thus, the provisions under Section 138 of the
Negotiable Instruments Act are not attracted. The learned trial Judge has
rightly acquitted the accused under Section 138 of the Negotiable
Instruments Act.
15] In case of Mahendra Pratap Singh Vs. State of Uttar
Pradesh reported in (2009) 11 SCC 334, the Hon'ble Apex Court has held
as under;
"Appraisal of evidence and on considering the relevant
attending circumstances, it is found that two views are possible,
one for acquitting the accused and other for convicting the
accused, in such a situation, rule of prudence should guide the
High Court, not to disturb the order of acquittal made by the
trial Court, unless confusion of the trial Court drawn on
evidence on record are found to be unreasonable and perverse
or unsustainable, the High Court should not interfere with the
order of acquittal".
7 Judg cr app 254-07.odt
16] No illegality or perversity noticed as such in the judgment and
order passed by the trial Court. Hence, the order:-
ORDER
i] The appeal filed by the original complainant is
hereby dismissed.
ii] The fees, payable to learned counsel Smt. Priya
Zoting appointed by the High Legal Services Sub
Committee, Nagpur for the appellant, is quantified at
Rs.5,000/- (rupees five thousand only).
JUDGE
Ingole
