Puroshottam Shivshankar ... vs Shakuntala Tulshiram Malviya
2017 Latest Caselaw 7551 Bom

 apeal271.04.J.odt                         1



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

                     CRIMINAL APPEAL NO.271 OF 2004

          Purushottam s/o Shivshankar Jirwankar,
          Aged about 45 yrs., Occu: Business,
          R/o Shantiniketan, Ambapeth, Amravati,
          Tahsil and District Amravati.       ....... APPELLANT

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

          Shakuntala w/o Tulshiram Malviya,
          Aged about 70 yrs., Occu: Household,
          Morshi, Near Akarte's House, Ram Mandir,
          Tah. Morshi, District Amravati.                            .......
 RESPONDENT
 -------------------------------------------------------------------------------------------
          None for Appellant.
          Shri Anoop Gilda, Advocate holding for Shri J.T. Gilda,
          Advocate for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            26    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               None   present   for   the   appellant.   Shri   Anoop   Gilda,

Advocate holding for Shri J.T. Gilda for the respondent.

2] The appeal was called out on 31.05.2017 and

thereafter on 12.09.2017. On both the dates of hearing, the

learned counsel for the appellant was absent. Record reveals, that

the learned counsel for the appellant has not even collected the

paper-book. This Court, vide order dated 12.09.2017 directed the

appellant to deposit costs of Rs.301/- with the High Court Legal

Services Sub-Committee, Nagpur. The costs have not been

deposited. It is more than obvious, that either the appellant is not

interested in prosecuting the appeal or then the learned counsel

for the appellant is not interested in assisting the Court. In this

view of the matter, I intend to decide the appeal on merits after

scrutinizing the record.

3] I have scrutinized the record with the assistance of

the learned counsel for the respondent Shri Anoop Gilda.

4] The appellant challenges the judgment dated

17.10.2003 in Summary Criminal Case 236/2001 delivered by the

Judicial Magistrate First Class, Court 5, Amravati acquitting the

respondent of offence punishable under section 138 of the

Negotiable Instruments Act, 1881.

5] The gist of the complaint is that due to cordial

relationship, the complainant had extended a hand loan of

Rs.2,10,000/- to the respondent-accused. The accused issued two

cheques in favour of the complainant, to wit, cheque dated

12.01.2001 for Rs.1,05,000/- bearing number 076282 drawn on

State Bank of India and cheque dated 12.02.2001 bearing number

0797629 drawn on Central Bank of India. The first cheque was

duly encahsed while the second cheque dated 12.02.2001 was

dishonoured, is the case of the complainant.

6] The learned Magistrate has recorded a finding that

the complainant has not proved that the cheque which was

dishonoured was issued towards existing legally enforceable date.

I have given my anxious consideration to the record, and having

done so, I agree with the finding recorded by the learned

Magistrate that the appellant-complainant has not proved that the

cheque which was dishonoured was issued against refund of loan,

as is alleged in the complaint.

7] The accused has brought out in the cross-examination

of the complainant that after the alleged transaction of loan, i.e.

on 06.09.2000 the accused paid Rs.20,000/- by cheque. It is also

extracted from the complainant that subsequent to the alleged

loan transaction the complainant issued two cheques each of

Rs.17,000/- in favour of the accused, on 04.07.2001, and the said

two cheques were dishonoured. The cross-examination of the

complainant further reveals that the accused has filed two civil

suits against the complainant inter alia seeking a declaration to

the effect that the disputed cheque is forged and fabricated and

for recovery of the money withdrawn by encashing the first

cheque. The accused also instituted civil suit for recovery of

Rs.34,000/- which is the amount covered by the two cheques

issued by the accused in favour of the complainant which was

dishonoured.

8] It is extracted from the complainant, in the

cross-examination, that he used to accompany the accused to her

banks and help her in banking transactions such as filling up the

cheque contents and accepting the money from the cashier etc.

A specific defence is raised by the accused that when the

complainant accompanied the accused to her bank, he dishonestly

retained some signed cheques of the accused and asked her to

give cheques in substitution on the pretext that the earlier

cheque/s was spoiled and rendered unusuable due to wrong

filling up of the particulars therein.

9] The learned Magistrate has noted that although the

complainant contended that the amount of Rs.2,10,000/-

allegedly extended as hand loan was acknowledged by the

accused by issuing a receipt, the purported receipt is not produced

on record. It is extracted in the cross-examination of the

complainant that he is not aware whether the accused ultimately

purchased any apartment. This cross-examination is in the context

of the version of the complainant that the loan was extended to

the accused to enable her to purchase a apartment then owned by

her daughter. It is further brought on record that the accused is

living alone in a rented house and did not have any independent

business or profession.

10] The learned Magistrate has rightly recorded a finding

that the issuance of two cheques Exh.37 and 38 by the

complainant in favour of the accused on 04.07.2001 renders the

entire version of the complainant improbable. The learned

Magistrate is right in observing that when according to the

complainant Rs.1,05,000/- is still unpaid and the notice period of

15 days is yet to lapse, the issuance of two cheques of Rs.17,000/-

by the complainant in favour of the accused, is absolutely

unnatural. The learned Magistrate has taken note of the fact that

disputed cheque Exh.31 is signed by the accused on both sides of

the cheque. The contents of Exh.31 are in the handwriting of the

complainant. The inference drawn by the learned Magistrate from

the fact that Exh.31 was intended to be a bearer cheque and the

signature of the accused need not have appeared on the reverse

side of the cheque, is unexceptionable.

11] The learned Magistrate has recorded a finding that

the accused has probablized the defence of misuse of cheque.

The view taken by the learned Magistrate is a possible view.

Indeed, on an overall appreciation of the evidence, the view taken

is the only view. The judgment is certainly not perverse and I see

no reason interfere with the same.

12] The appeal is sans merit and is rejected.

JUDGE

NSN