Kancharla Guneshwara Rao (K.G. ... vs Dipak S/O Shankarrao Gundawar
2018 Latest Caselaw 9 Bom

 apeal97.10.J.odt                          1




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


                      CRIMINAL APPEAL NO.97 OF 2010


          Kancharla Guneshwara Rao (K.G. Rao),
          Aged about 65 years, Occupation: Retired,
          Resident of House No.821, Balaji Complex,
          Thenge Plot, Highway Road, Bhadrawati,
          Tahsil Bhadrawati,
          District Chandrapur.                ....... APPELLANT


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


          Dipak s/o Shankarrao Gundawar,
          Aged about 49 years,
          Occupatio: Service, R/o Y. & E. Station,
          O.F. Chanda, District Chandrapur. ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.V. Sirpurkar, Advocate for Appellant.
          Shri N.R. Bhishikar, Advocate for Respondent.
 -------------------------------------------------------------------------------------------


 CORAM:  ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      31.10.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      04.01.2018



 1]               The   appellant,   who   is   the   original   complainant   in

Criminal Case 12/2005 instituted under the provisions of section

138 read with section 142 of the Negotiable Instruments Act,

1881 ('Act' for short) is challenging the judgment and order dated

13.03.2009 passed by the Judicial Magistrate First Class,

Bhadrawati, by and under which, the respondent (original

accused) is acquitted of the offence punishable under the Act.

2] Heard Shri S.V. Sirpurkar, the learned Counsel for the

appellant and Shri N.R. Bhishikar, the learned Counsel for the

respondent.

3] Shri S.V. Sirpurkar, the learned counsel for the

complainant contends that the judgment impugned dangerously

borders on perversity. The acquittal is on the premise that the

complainant failed to prove that the disputed cheque was

returned unpaid due to want of sufficient funds in the account of

the accused. The premise is predicated on an error in the memo of

return which refers to cheque 0016376 while the disputed cheque

is 0016373. The submission is, that the complainant on noticing

the error, proved beyond reasonable doubt that the reference to

cheque 0016376 was an error and even otherwise, in the teeth of

the evidence on record, the error in the memo of return was

irrelevant and insignificant. The learned counsel for the accused

supports the judgment and order impugned. He would further

submit, that even otherwise the complainant failed to prove that

the disputed cheque was issued towards discharge of legally

enforceable debt or liability. The complainant is engaged in the

business of illegal money lending and the disputed cheque is

misused although the entire amount covered by the cheque was

duly paid, is the submission.

4] The gist of the complaint is that the accused issued

cheque dated 16.11.2004 bearing number 0016373 for

Rs.50,000/- drawn on the Chandrapur District Central

Co-operative Bank Limited, Ordnance Factory Branch,

Chandrapur. The cheque was presented for encashment and was

dishonoured. The intimation of dishonor was accompanied by

letter of the Chandrapur District Central Co-operative Bank

Limited dated 20.11.2004 referring to funds insufficient as the

reason for dishonor. The complainant issued the statutory notice

which was received by the accused who did not comply.

5] The complainant stepped into the witness box and

deposed that the cheque was issued towards refund of earnest

money. The complainant was subjected to gruelling

cross-examination which would reveal that it was not at all the

defence of the accused that the disputed cheque Exh.23 bearing

number 0016373 was not returned unpaid for want of sufficient

funds in the account of the accused. The defence, as is evident

from the trend and tenor of the cross-examination is that the

complainant is a money lender who is misusing the disputed

cheque Exh.23 although the amount of Rs.50,000/- which was

lent to the accused was paid in entirety.

6] However, the complainant examined Gopichand

Ganvir, the then Manager of the Chandrapur District Central

Co-operative Bank Limited as C.W.2. It is during the

cross-examination of the said witness that it was brought on

record that the cheque return memo refers to cheque 0016376,

while the disputed cheque bears number 0016373.

Presumably the complainant noticed the error only during the

cross-examination of C.W.2 and examined one Rajkumar Kulkarni

the incumbent Manager of the Chandrapur District Central

Co-operative Bank Limited as C.W.5 who deposed that the

number of the cheque is mentioned incorrectly due to

inadvertence. The complainant also examined one Ganesh Madavi

as C.W.6 to prove that the number mentioned in return memo

Exh.39 is wrongly mentioned and that the memo of return as a

fact pertains to the disputed cheque Exh.23. The Clerk who

committed the error in writing the wrong number in the memo of

return Exh.39 was examined as P.W.7.

7] The accused did not step into the witness box.

However, one Dipak Bhati an Officer of the State Bank of India,

Chandrapur was examined as D.W.1 to prove the payment of an

amount of Rs.10,000/- by the accused to the complainant vide

cheque 148274. Advocate Sanjay Sirpurkar was examined as

D.W.2 to prove the notice issued by the son of the complainant to

the accused and the wife of the accused.

8] In the statement recorded under section 313 of the

Criminal Procedure Code the accused denied every incriminating

material put to him and stated that the complainant is in the habit

of instituting false proceedings.

9] Concededly, the cheque return memo Exh.39 does

make a reference to cheque 0016376 while the disputed cheque

Exh.23 is 0016373. However, it is difficult to agree with the

learned Magistrate who has recorded the finding of acquittal

holding that the complainant failed to prove that the disputed

cheque Exh.23 was not returned unpaid due to want of sufficient

funds. The dishonor of cheque is a fact which the complainant

may prove, if the dishonor is disputed, by any evidence not

necessarily restricted to the cheque return memo. Be it noted, that

the accused did not reply to the statutory notice. Nor did the

accused, while cross examining the complainant, suggest that

cheque Exh.23 was not returned unpaid due to insufficient funds

in the account of the accused. The accused did not suggest to the

complainant that he did not present the disputed cheque Exh.23

for encashment much less that upon presentation Exh.23 was not

dishonoured. The issuance of cheque Exh.23 for Rs.50,000/- by

the accused to the complainant was never in dispute. The defence

of the accused was that the complainant was a money lender

whose modus operandi was to obtain from the borrower

agreement to sell as security. The accused suggested to the

complainant that the entire amount of loan of Rs.50,000/- was

duly paid and the disputed cheque Exh.23 was misused to

institute the prosecution in the greed of extracting more amount

from the accused. In the teeth of the evidence on record, the

judgment and order of acquittal is wholly unsustainable.

10] However, having given my anxious consideration to

the entire evidence on record, I find that there are other serious

and contentious issues which have not been addressed in any

detail by the learned Magistrate presumably since the view taken

was that the complainant did not prove the dishonor of the

disputed cheque. In view of the order which I propose to make, it

would not be appropriate to discuss in detail the evidence.

However, the issues which require consideration in some detail

are whether the cheque was issued towards discharge of an

existing debt and whether the debt was legally enforceable.

11] On holistic consideration, while holding that the

judgment and order is unsustainable, I would remit the

proceedings to the learned Magistrate for a fresh decision in

accordance with law. The learned Magistrate shall proceed on the

basis that the disputed cheque Exh.23 was returned unpaid due to

want of sufficient funds in the account of the accused. Every other

question is left open for determination.

12] The appeal is partly allowed. The record and

proceedings be sent back to the learned Magistrate who is

requested to decide the Summary Criminal Case 12/2005 within a

period of one year from the receipt of record and proceedings,

after giving opportunity to the parties to adduce any further

evidence, if so adviced.

  13]              The appeal is disposed of.



                                                      JUDGE
NSN