Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 1993 (BOM)

UMAKANT GOVIND PARAB v. RAJENDRAKUMAR BAJAJ

2012-10-15

ABHAY M.THIPSAY

body2012
JUDGMENT: ABHAY M. THIPSAY, J. 1. The applicant had prosecuted the Respondent No. 1 herein on the allegation of having committed an offence punishable u/s 138 of the Negotiable Instruments Act. The learned Metropolitan Magistrate’s 7th Court, Dadar, after holding a trial, found the Respondent No. 1 not guilty' and passed an order of acquittal. Being aggrieved by the said order of acquittal, the applicant is seeking special leave as contemplated under sub-Section (4) of Section 378 of the Code of Criminal Procedure, to file an appeal from the said order of acquittal. 2. I have heard the applicant, who appears in person. I have also gone through the annexures to the application and more particularly the impugned judgment. 3. The applicant shall hereinafter be referred to as the complainant and the Respondent No. 1 as the accused for the purpose of convenient and clarity. 4. The complainant’s case as per the complaint was that he knew the accused. That the accused had approached him in the month of August, 2005 and had requested for a friendly loan. That in the month of September, 2005 and October, 2005, the complainant handed over a total sum of Rs.3 lacs to the accused. That the accused issued a post dated cheque in the sum of Rs.1 lac, in the name of the complainant, bearing No. 670117 dated 18/4/2007 towards the repayment of the loan. The said cheque was dishonoured for want of funds and that as the accused failed to pay the amount of the said cheque, in spite of a demand notice, the complaint was lodged. 5. It appears that during the trial the complainant examined himself twice. After he was once examined and cross-examined, he filed an application u/s 311 of the Code for recalling him, which application was allowed and the complainants further evidence came to be recorded. 6. In the course of trial, it transpired that there were several other dealings between the complainant and the accused which were not mentioned in the complaint. 7. The learned Magistrate in his judgment noted the points for determination properly and also noted the rival contentions in paras 8 and 9 of his judgment. 8. The Magistrate summarized the admitted fact as follows: i) That the applicant had received the loan amount of Rs.3 lacs. ii) That he had signed the cheque. 9. 7. The learned Magistrate in his judgment noted the points for determination properly and also noted the rival contentions in paras 8 and 9 of his judgment. 8. The Magistrate summarized the admitted fact as follows: i) That the applicant had received the loan amount of Rs.3 lacs. ii) That he had signed the cheque. 9. However, the accused contended that he had repaid the loan amount. He brought on record the payment of Rs. 3 lacs made by him to the complainant prior to the filing of the complaint. It is at that stage that the complainant came up with a story that the actual loan advanced by him was Rs.7 lacs, by which, the complainant wanted to say that though he received an amount of Rs. 3 lacs, still certain loan amounts were outstanding from the accused. 10. A number of documents which include the correspondence between the parties were tendered in evidence. They were marked and exhibited. 11. The Magistrate, upon considering the evidence, observed that the complainant had admitted the receipt of amount of Rs.3 lacs in a letter issued by his advocate. The said letter was tendered in evidence (Exh.-54) The Magistrate noted that in the said letter, the complainant had claimed interest @ 18% per annum under the promissory note dated 1/10/2005, but there was no reference to the loan transaction of Rs.7 lacs by the complainant to the accused. 12. The Magistrate also observed that, though a claim of actually having lent Rs.7 lacs was made by the complainant subsequently, he had not pleaded that fact in the complaint. 13. The Magistrate also observed that no specific date on which the loan amount was advanced to the accused by the complainant was mentioned in the complaint. 14. In view of the fact that there were number of transactions between the parties which the complainant had not chosen to disclose, the Magistrate doubted the version of the complainant. The Magistrate was of the view that it was impossible on the part of the complainant to have again advanced an amount to the accused when according to him the interest on the previous amount of Rs.3 lacs was not paid. 15. The view taken by the Magistrate is a possible view of the matter. The Magistrate was of the view that it was impossible on the part of the complainant to have again advanced an amount to the accused when according to him the interest on the previous amount of Rs.3 lacs was not paid. 15. The view taken by the Magistrate is a possible view of the matter. It does not appear that the Magistrate ignored to take relevant evidence into consideration or that he based his conclusion on inadmissible or irrelevant material. 16. It is well settled that while deciding the question of grant of leave, the principles on which the interference with the order of acquittal would be justified, need to be kept in mind. 17. Since in this case the view taken by the Magistrate is certainly a possible view of the matter, it will be futile to grant leave. 18. Leave refused. 19. The application is rejected.