Manoj S/O Kamthaprasad Gupta vs Smt Nilima D/O Tilakraj Dhanule ...
2022 Latest Caselaw 7019 Bom

                                                        1                                  10.APEAL.197-2020.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR
                      CRIMINAL APPEAL NO. 197 OF 2020
( Manoj s/o Kamthaprasad Gupta Vs. Smt. Nilima d/o Tilakraj Dhanule )
Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. R.K. Borkar, Advocate for the Appellant.
                                  Mr. H.D. Futane, Advocate for the Respondent.

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 21st JULY, 2022.

Heard Mr. Borkar, learned counsel for the appellant and Mr. Futane, learned counsel for the respondent.

2. This appeal by the original complainant challenges the judgment dated 05.09.2019,whereby the learned Special Court under the Negotiable Instruments Act, has acquitted the accused/respondent of the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Mr. Borkar, learned counsel for the appellant/complainant submits, that there was a transaction between the husband of the accused, where under he had agreed to sale immovable property to him, for which an agreement to sale came to be executed on 25.01.2011 and the husband of the accused had received a part consideration of Rs.9,00,000/- under the said transaction. However, since the husband of the accused sold the property to a third person, the husband of the accused on account of refund of the part consideration 2 10.APEAL.197-2020.odt

paid, a sum of Rs. 6,90,000/- in totality was refunded back. Since the balance Rs. 2,10,000/- was not forthcoming, a complaint was claimed to have been lodged by the complainant against the husband of the accused, in which it is claimed, that there was settlement executed between the parties under the terms of which the accused, agreed to stand as a guarantor of the balance amount payable by her husband and is claimed to have issued a cheque of Rs. 2,10,000/-, which when presented was dishonoured, notice sent not replied, as a result of which, a complaint under Section 138 of the Negotiable Instruments Act, has been lodged.

4. The complainant entered into the witness box and was cross examined. In the cross-examination, he has categorically admitted, that there was no transaction whatsoever between him and the accused. It is stated by him, that the transaction was between him and the husband of the accused as indicated above, on account of which, the cheque in question has been given by the accused on behalf of her husband. The learned Special Court held, that though the presumption was in favour of the complainant, however in view of his cross-examination, since there was no transaction whatsoever, a legal debt and liability was absent, and therefore, acquitted the accused.

5. Mr. Borkar, learned counsel for the appellant/complainant submits, that in view of the settlement between the complainant and the husband of the accused, since the cheque was given by the accused 3 10.APEAL.197-2020.odt

as a guarantor, a legal debt and liability was established. It is however material to note, that such settlement was not placed on record, neither was the record from the concerned Police Station, in which the settlement has taken place and has been recorded was produced before the learned Special Court, in view of which, considering the admissions made by the complainant, that there was no transaction between himself and the accused and the role of the accused being a guarantor of her husband, on which account the cheque was issued, having not been proved, the learned Special Court, was correct acquitting the accused.

6. Though, reliance has been placed by Mr. Borkar, learned counsel for the appellant /complainant on ICDS Ltd. Vs. Beena Shabeer and Another, (2002) 6 SCC 426, it is of no assistance to the learned counsel, as that was a case in which there was a document of hire purchase executed by the husband and in which the wife had stood as a guarantor for repayment and had issued a cheque. In the instant case, though a claim is made regarding settlement having being executed, the document has not been placed on record. I therefore do not see any reason to defer with what has been held by the learned Special Court. There is no merit in the Appeal, the same is accordingly dismissed with no order as to costs.

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:22.07.2022 18:46 JUDGE SD. Bhimte