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2011 DIGILAW 452 (BOM)

Sunita Anand Shinde v. Dattu Kisan Kalambe

2011-04-11

U.D.SALVI

body2011
Judgment :- Heard. Perused the application, copies of the evidence, statements of the accused under Section 313 of Code of Criminal Procedure, 1973. 2. The complainant in her cryptic complaint stated that she was conducting the business of money lending and the cheque in question of Rs.95,000/-was returned to her with remark from the banker "Insufficient funds"; and accused did not respond to the notice of demand dispatched to him by RPAD and Under Certificate of Posting. The complaint revealed that neither the covers nor acknowledgment of receiving registered mail were received back by her. 3. The applicant-complainant besides examining herself adduced in evidence the dishonoured cheque, cheque return memo, notice of demand dated 1.7.2003, registered post receipt Certificate of Posting and receipt dated 10.3.2003. The Respondent no.1-accused denied the complainant's assertions and examined himself to state that the cheque and the receipt dated 10.3.2003 were forged and the blank cheque was misused after being stolen or lost from his custody. 4. The learned trial court on appreciation of the entire evidence including hand-writing expert's opinion reached the conclusion that there is no cogent, satisfactory and conclusive evidence to establish the fact of execution of the disputed documents by the accused as alleged. The complainant in her cross-examination revealed that she has been doing business in money lending since the year 2003. Taking the cue from this fact, the learned trial court observed that the claim of the complainant that the amount was advanced to the accused by way of hand-loan found no support in the averments of the complainant. 5. Ms. Solanki, the learned Advocate for the applicant submits that with reference to the Section 2, 9(f) of the Bombay Money Lenders Act, 1946, the advance having been made to the accused on the basis of a Negotiable Instruction i.e. a Cheque, was not the loan within the meaning of the said provision and as such there was no money lending. 6. Significantly, the notice and the complaint did not elaborate that the loan was advanced against the post dated cheque. Receipt (Exh.P-2) was also not referred to either in the notice or in the complaint lodged by the complainant. 7. The accused was expected to rebut the presumption under the Negotiable Instruments Act, 1881 on preponderance of probabilities. 6. Significantly, the notice and the complaint did not elaborate that the loan was advanced against the post dated cheque. Receipt (Exh.P-2) was also not referred to either in the notice or in the complaint lodged by the complainant. 7. The accused was expected to rebut the presumption under the Negotiable Instruments Act, 1881 on preponderance of probabilities. In a absence of any word of corroboration to the case as averred by the complainant and in view of the assertion that the complainant was carrying on business of money lending without licence, the findings of the learned trial cannot be faulted with and the trial court cannot be said to be in error. Hence, the leave is refused. 8. Criminal Application stands disposed off.