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2018 DIGILAW 1142 (BOM)

Krishnarao v. Gajanan Bricks Pvt. Ltd.

2018-04-25

A.D.UPADHYE

body2018
JUDGMENT A.D. Upadhye, J. - Being aggrieved by the Judgment and order dated 30/06/2006 passed by the J.M.F.C. & Special Court of 138 of N. I. Act, Nagpur in Summary Criminal Case No.1062/2002 acquitting the accused of the offence punishable under section 138 of the Negotiable Instruments Act, the appellant - original complainant has preferred this appeal. The respondent Nos.1 and 2 are original accused. The respondent No.3 is State of Maharashtra. The parties are referred by their original status. (Hereinafter appellant is referred as "complainant" and respondents are referred as "accused"). 2. During the pendency of the appeal, the legal heirs of the complainant were brought on record. 3. The complainant has contended that he is the resident of Nagpur. The accused No.1 is the Company duly registered under the Companies Act and accused Nos.2 and 3 are their Managing Directo It appears that the name of accused No.3 - Sanjay Hartalkar was deleted, as the complaint was withdrawn against him and he was acquitted. 4. The complainant has contended that the accused Nos.2 and 3 approached to him in the month of January, 1994 and requested for handloan to meet the urgent business dealings. The complainant agreed to give Rs. 60,000/- to them. The complainant has given said amount and the accused have acknowledged the same vide receipt dated 20/01/1994 vide Exh.36. The complainant tried his level best to get back the amount, but in vain. The accused Nos.2 and 3 thereafter issued cheque of Rs. 1,00,000/- on 01/06/2002 towards the payment of loan of Rs. 60,000/- and Rs. 40,000/- towards compensation of loss of interest. The cheque was deposited in the bank of Baroda on 07/10/2002. However, the said cheque was returned back on 09/10/2002 with endorsement "fund insufficient". The complainant, thereafter issued legal notice to all the accused and called upon them to make payment. Notice returned back with endorsement "Not claim". The complainant, therefore, filed the complaint before the J.M.F.C., Nagpur. 5. After issuing process under section 138 of the Negotiable Instruments Act, the accused appeared in the proceeding. The name of accused No.3 - Sanjay Hartalkar was deleted and case was withdrawn against him and he was acquitted as per order passed below Exh.1. The accused No.2 - Vishwas Ladke appeared in the proceeding and particulars of offence were framed against him vide Exh.27. The name of accused No.3 - Sanjay Hartalkar was deleted and case was withdrawn against him and he was acquitted as per order passed below Exh.1. The accused No.2 - Vishwas Ladke appeared in the proceeding and particulars of offence were framed against him vide Exh.27. The contents of offence were read over to him in vernacular. He pleaded not guilty. 6. After recording the evidence in the matter and hearing both the sides, learned Magistrate has acquitted the accused Nos.1 and 2 of the offence punishable under section 138 of the Negotiable Instruments Act by its order dated 30/06/2006. The said order is impugned in the present appeal. 7. I have heard the learned counsel for the parties at length. 8. Shri Khapre, learned counsel for the complainant has submitted that the cheque issued by the accused is admitted and also signature on it, is also admitted. The defence of the accused that the cheque is of the year 2002 and the date of loan is 20/01/1994 and therefore, on the ground of time barred debts, they were acquitted. He further submitted that if cheque is given by the accused, the liability is enforceable as they acknowledged the loan and therefore, there is no question of time barred debt. The learned counsel for the accused however, submitted that the blank cheque was given for security of loan amount of Rs. 60,000/-. The amount of Rs. 60,000/- was already paid by the accused No.3 who is a partner of the Company. There is no liability of the accused to pay the loan amount. The complaint filed by the accused, thus, deserves to be dismissed. The appeal, therefore, be dismissed. 9. Considering the submissions of the respective sides and evidence on record, it appears that as per the receipt / acknowledgment at Exh.36, Rs. 60,000/was received by the Directors of the Company from the complainant Krishnarao Pitale. The date of receipt is 20/01/1994. During the pendency of the complaint, the accused No.3 has paid the amount of Rs. 60,000/- to the complainant and therefore, the name of accused No.3 -Sanjay Hartalkar was deleted from the complaint. If the amount of the loan of Rs. 60,000/- is paid, nothing is remained to be paid by the accused persons. The complainant has not shown why the accused gave cheque of Rs. 1,00,000/- for the amount of Rs. 60,000/-. 60,000/- to the complainant and therefore, the name of accused No.3 -Sanjay Hartalkar was deleted from the complaint. If the amount of the loan of Rs. 60,000/- is paid, nothing is remained to be paid by the accused persons. The complainant has not shown why the accused gave cheque of Rs. 1,00,000/- for the amount of Rs. 60,000/-. The complainant has adduced the evidence by filing affidavit at Exh.35 and asserted the contents of the complaint. In the cross-examination, the complainant has admitted that amount of Rs. 60,000/- is paid by the accused No.3 - Sanjay Hartalkar and therefore, case is withdrawn against him. According to him, said amount was paid towards part payment of the cheque amount. The complainant has not adduced evidence showing how the liability of Rs. 1,00,000/- to pay by the accused persons to him. Therefore, question of part payment does not arise. The complainant has received the entire amount of Rs. 60,000/- as per receipt. 10. The accused No.2 Vishwas Ladke filed his affidavit at Exh.56 and submitted that the amount of Rs. 60,000/- was obtained as handloan and receipt was executed on 20/01/1994. The blank cheque of Bank of Baroda signed by accused No.3 - Sanjay Hartalkar was given to the complainant on 20/01/1994 for securing handloan. It is also submitted that there was loss in business and therefore, bank account of the company in the Bank of Baroda, South Ambazari was closed since 1997. He was crossexamined at length. However, there is no cross-examination that the blank cheque was given for security purpose. The evidence of the accused No.2 goes unchallenged. The submission put forth on behalf of complainant that the learned Magistrate has wrongly given finding that loan is time barred debt. Therefore, the accused cannot be held guilty under section 138 of the Negotiable Instruments Act. The cheque given by the accused was of the year 1994 and therefore, there is no acknowledgment of loan by giving cheque on 01/06/2002 as contended by the complainant. From perusal of cheque at Exh.37, it appears that the figure "19" is scored and the date is mentioned as 01/06/2002. Cheque must have been issued in the year 1994 and not in the year 2002 and therefore, the case of the accused that the blank cheque was given for security of loan appears to be probable than the case put forth on behalf of complainant. Cheque must have been issued in the year 1994 and not in the year 2002 and therefore, the case of the accused that the blank cheque was given for security of loan appears to be probable than the case put forth on behalf of complainant. Thus, there is no question of acknowledging his liabilities of the loan by issuing cheque on 01/06/2002. The cheque given by the accused is used by the complainant by inserting the date 01/06/2002 and presented the same in the bank. The submission put forth on behalf of the complainant that once liability is acknowledged by issuing cheque, the loan amount due against the accused, therefore not barred, cannot be accepted. 11. The learned counsel for the complainant has relied upon the ruling in the case of K.N. Beena vs. Muniyappan and another, reported in AIR 2001 Supreme Court 2895 and in the case of Hiten P. Dalal vs. Bratindranath Banerjee, reported in AIR 2001 Supreme Court 3897 . The learned counsel has also relied upon the ruling in the case of Dinesh B. Chokshi vs. Rahul Vasudeo Bhatt and another, reported in 2013 (2) Mh.L.J. 130 . In the above ruling, it is held that promise to pay time barred debt is valid contract. No one can dispute the proposition of law. However, in the facts and circumstances of the case, the amount of Rs. 60,000/- is already paid to the complainant by the accused. The blank cheque was issued in the year 1994 itself and therefore, there is no question of promise to pay time barred loan, as argued by the learned counsel. The above ruling is, thus not helpful to the complainant. On the facts and circumstances, both the rulings are not made applicable to the case at hand. The amount of Rs. 60,000/- is already paid to the complainant and therefore, there is no liability of the accused persons. Hence, these authorities are not helpful to the complainant. 12. After hearing both the sides and after perusal of record of the case, I am of the view that there is no scope for interference in the acquittal of the accused. The appeal is devoid of any merit and liable to be dismissed and accordingly dismissed. No costs.