Ganesh S/O Narayan Badwaik vs Avinash S/O Kawadu Selote And ...
2018 Latest Caselaw 507 Bom

 apeal68.16.J.odt                          1




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

                       CRIMINAL APPEAL  NO.68 O
                                                F 2016
                                                       

          Ganesh s/o Narayan Badwaik,
          Aged about 51 years,
          Occ: Business, R/o Rajendra Nagar,
          Tumsar, Tq. Tumsar, Dist. Bhandara. ....... APPELLANT

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

 1]       Avinash s/o Kawadu Selote,
          Aged about 44 years,
          Occu: Business, R/o Govardhan Nagar,
          Tah. Tumsar, Dist. Bhandara.

 2]       State of Maharashtra through
           APP Nagpur.                                       .......  RESPONDENT S          
 -------------------------------------------------------------------------------------------
          Shri Mahesh Rai, Advocate for Appellant.
          Shri K.S. Motwani, Advocate for Respondent 1.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO , J.

          DATE:                th
                            16    JANUARY

                                             8    . 


 ORAL JUDGMENT



 1]               Challenge   is   to   the   judgment   and   order   dated 

23.03.2015 passed in Summary Criminal Case 130/2009 by the

Judaical Magistrate First Class, Tumsar, by and under which, the

respondent 1 is acquitted of offence punishable section 138 of the

Negotiable Instruments Act, 1881 ("Act" for short).

2] Heard Shri Mahesh Rai, the learned Counsel for the

appellant and Shri K.S. Motwani, the learned Counsel for the

respondent 1.

3] The judgment and order of acquittal is predicated,

inter alia, on an assumption that the carbon copy of form 8

maintained under the provisions of the Maharashtra Money

Lenders Act is not signed by the accused. Perusal of Exh.66 would

reveal that there is a signature purportedly of the accused.

Defence witness 2 Shri Pramod Meher who is examined by the

accused has identified the signature of the accused on Exh.66.

However, while recording a finding that form 8 is not signed by

the accused the learned Magistrate was not alive to the purported

signature of the accused and to the evidence of D.W.2.

4] One of the findings recorded by the learned

Magistrate is that the statutory notice is not served. The envelope

sent by registered post was returned with the endorsement "not

claimed". According to the learned Magistrate, the said

endorsement cannot be equated with refusal. I need not deal with

the said aspect in greater detail since I propose to remit the

proceedings to the learned Magistrate and any observation made

by this Court ought not to directly or indirectly influence the trial

court. Suffice it to say, that whether the said endorsement would

give rise to presumption of service, will have to be decided by the

learned Magistrate on the anvil of law enunciated by the Apex

Court in the decisions which have been rendered subsequent to

the decision of this court on which reliance is placed.

5] The accused did not dispute his signature on Exh.48

which is the disputed cheque. The defence is, that the accused

borrowed Rs.20,000/- from the complainant in January, 2005 and

three cheques duly signed but with the other contents blank were

given to the complainant as security. The defence is that although

the loan borrowed is repaid in its entirety, the cheque which were

given as security were not returned, and one such cheque is

misused in the year 2008.

6] Concededly, the complainant is a money lender who

claims to hold the statutory licence. It would be appropriate, if the

learned Magistrate decides every issue arising in the proceeding

afresh, if need be by permitting the parties to adduce further

and/or additional evidence. The learned Magistrate will have to

evaluate the documentary evidence on record and the effect of the

alleged non-compliance with the provisions of the Money Lenders

Act. The learned Magistrate would have to evaluate the defence

evidence and to decide whether the statutory presumption under

section 139 of the Act stands reubtted.

7] In the light of the discussion supra, the judgment and

order dated 23.03.2015 is set aside.

8] The learned Magistrate would be required to decide

the every issue arising afresh, if necessary by permitting the

parties to adduce further and/or additional evidence. The learned

Magistrate is requested to finally decide the complaint within six

months from the receipt of the record and proceedings.

The parties are directed to appear before the learned Judicial

Magistrate First Class, Tumsar on 03.02.2018 and to abide by

further directions.

9] The registry to ensure that the record and proceedings

is sent back to the trial court expeditiously.

  10]              The appeal is partly allowed.




                                                     JUDGE


NSN