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2006 DIGILAW 1161 (BOM)

G. Nirmala v. Syed Zahir Ahmed

2006-07-27

GOPALA KRISHNA TAMADA

body2006
JUDGMENT:- This criminal appeal is preferred by the complainant against the judgment dated 20-2-2001 passed in C.C. No. 702 of 1999 by the X Metropolitan Magistrate, Secunderabnad, wherein the first respondent-accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881,(for short, ‘the Act’). 2. The appellant is the complainant and the first respondent is the accused. For the purpose of convenience, the parties are hereinafter referred to as they were arrayed in the trial Court. 3. The case of the prosecution, in brief, is that the accused approached the complainant in the month of May, 1998 for a hand loan of Rs. 1,20,0001- to meet his domestic needs. The complainant accordingly gave an amount of Rs. 1,20,0001- to the accused and at that time the accused promised that he would repay the said amount within a period of six months, but he failed to do so. Despite the fact that the complainant requested and demanded for repayment of the loan amount, the accused was postponing the same on some pretext or the other and ultimately issued Ex.P1, cheque bearing No.615589, dated 5-8-1999, for the said amount. After consultation and with the consent of the accused, the complainant presented the cheque with her banker at Secunderabad, but the said cheque was dishonoured with an endorsement 'insufficiency of funds'. Thereafter, the complainant as provided under Section 138 of the Act issued Ex.P3, notice, but the same was returned with an endorsement that the accused refused to receive it. Thereupon, the complainant filed the complaint against the accused for the offence punishable under Section 138 of the Act. 4. On behalf of the complainant, the complainant herself was examined as PW-1 and her son, who is a close friend of the accused, was examined as PW-2 and got marked Exs.P1 to P6. Per contra, the accused was examined as DW-l and got marked Exs. D1 to D3. 5. On an analysis of both oral and documentary evidence adduced on either side the Court below found the accused not guilty of the offence with which he 'was charged and accordingly dismissed the complaint filed by the complainant mainly on two grounds: Firstly as PW-1 was not put to cross-examination an adverse inference was drawn against the complainant. 5. On an analysis of both oral and documentary evidence adduced on either side the Court below found the accused not guilty of the offence with which he 'was charged and accordingly dismissed the complaint filed by the complainant mainly on two grounds: Firstly as PW-1 was not put to cross-examination an adverse inference was drawn against the complainant. Secondly, though the complaint was filed by the complainant and she was examined-in-chief, she was not cross-examined at any point of time but her son, who was given General Power of Attorney, on her behalf, was examined as PW-2 and thus also an adverse inference was drawn against the complainant. 6. Heard learned Counsel for the appellant, learned Additional Public Prosecutor and perused the impugned judgment and other material on record. 7. As the cheque bouncing cases are alarmingly increasing and in order to curtail the same, the Government of India thought it fit and necessary to introduce certain amendments to the Negotiable Instruments Act, 1881. To achieve that object Section 138 of the Act was inserted by Bank's Public Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) and the said Act has come into force with effect from 1-4-1989. Act 66 of 1988 was introduced with a view to encourage the culture of use of cheques and enhance the credibility of the instruments. The Legislature has sought to inculcate faith in the efficacy of banking operations and use of negotiable instruments in business transactions. Whenever a cheque is returned by a banker with an endorsement "insufficiency of funds" etc., then the procedure for prosecution is prescribed under Section 138 of the Act, according to which a notice shall be issued informing the payer about the dishonour of the cheque, within 15 days (subsequently amended as 30 days) from the date of the knowledge of bouncing of the said cheque. The purpose of the said notice is to enable the payer to make alternative arrangement and see that the cheque amount is paid. The purpose of the said notice is to enable the payer to make alternative arrangement and see that the cheque amount is paid. Despite the receipt of the said notice if the amount is not paid within a period of 15 days, it is open to the payee or the holder in due course to approach the Court and make a complaint within 30 days thereafter and the Court basing on a complaint filed as above, can take cognizance of the offence as provided under Section 142 of the Act. It is also made clear that unless the contrary is proved it is presumed that the holder of a cheque received the cheque in discharge of a debt or other liability and what is a debt or liability is again explained in Section 138 of the Act itself and that the said debt or liability must be only a legally enforceable debt or other liability. 8. When once this Court looks at the instant case, keeping in mind the said provisions of law, it is clear that the learned Magistrate has clearly erred in coming to the conclusion that the complaint is misconceived. It is a fact that PW-l was examined only in-chief and thereafter as she is bedridden with paralysis and not subjected to cross-examination, her son was examined as PW-2. From this, the Court cannot draw any adverse inference. In fact, the law is very clear on this aspect. Initially, though the Courts were of the view that a General Power of Attorney holder cannot maintain a complaint under Section 138 of the Act, now it is settled that a complaint is maintainable even at the instance of the GP A holder. When that is the clear legal position, I do not think the Court below is not justified in rejecting the evidence of PW-2 on the ground that he is only a GPA holder and that PW-1 was not available for cross-examination. 9. Another important aspect is the approach of the Court below in holding that the amount of Rs. 1,20,000/- might not have been paid by the complainant to the accused. The Court below has forgotten the fact that it is deciding a complaint under Section 138 of the Act, but not a suit for recovery of money. 9. Another important aspect is the approach of the Court below in holding that the amount of Rs. 1,20,000/- might not have been paid by the complainant to the accused. The Court below has forgotten the fact that it is deciding a complaint under Section 138 of the Act, but not a suit for recovery of money. In a complaint under Section 138 of the Act, as already discussed, the requirements are as to whether the complaint has followed the procedure provided under Section 138 read with Section 141 of the Act. When the requirements under Section 138 read with Section 141 of the Act are fulfilled, the irresistible conclusion to which the Court shall arrive at is that there is a legally enforceable debt and that the accused is liable for punishment for the offence under Section 138 of the Act. In the instant case, the learned Magistrate has also discussed the competence of the complainant to advance the loan and also the competence of the accused to borrow the loan, which in my considered view are not permissible under law. The relevant paragraph is as follows - "12. According to PW-2 Rs. 1,20,000/ - cash was simply given to the accused without any documentary proof. It is not the case of the complainant or PW-1 that at the time of lending money Ex.P1 was taken from the accused. PW-2 has stated in so many words that just 2 or 3 days prior to date EX.P1 bears, it was given post dating it as 5-8-1999 and on the same day they presented the cheque for encashment. It is improbable to say that such huge amount was lent by the complainant to the accused, without knowing his profession or education and his capacity to repay the amount, simply because he was introduced by the cousin ofPW-2 as his friend. The accused is aged about 27 years now. So, the theory of the complainant that the complainant has lent such huge amount to the accused is not believable as per the evidence of PW- 2. The complainant did not come to the witness box though she was examined initially in part and stayed away from the witness box. She is the right person to explain the circumstances in which she has lent Rs. 1,20,000/- to the accused, without taking any document from the accused," 10. The complainant did not come to the witness box though she was examined initially in part and stayed away from the witness box. She is the right person to explain the circumstances in which she has lent Rs. 1,20,000/- to the accused, without taking any document from the accused," 10. As stated supra, in a case of this nature, the Court should have restricted itself without going into those aspects, as it is unnecessary for a criminal Court to go into the details whether it is probable to say that such huge amount was lent by the complainant to the accused without knowing the profession or education and his capacity to repay the amount etc., which are beyond the scope of the criminal Court. Hence, this Court has no hesitation to come to the conclusion that the judgment impugned in this appeal is liable to be set aside. In the light of the said findings, this Court is of the view that it is desirable that the case be remitted to the trial Court for fresh disposal in accordance with law giving opportunity to the complainant to get herself examined-in-cross. 11. Accordingly, the criminal appeal is allowed and the judgment dated 20-2-2001 passed in C.C. No. 702 of 1999 by the X Metropolitan Magistrate, Secunderabad is set aside, and the matter is remitted to the Court below for fresh disposal in accordance with law. Appeal allowed.