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2018 DIGILAW 1143 (BOM)

Kamla Pyarelal Gupta v. Deepak

2018-04-25

ARUN D.UPADHYE

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JUDGMENT Arun D. Upadhye, J. - Being aggrieved by the Judgment and order dated 28.06.2005 passed by the JMFC Court No. 1, Achalpur acquitting the accused of the offence punishable under section 138 of the Negotiable Instruments Act in Summary Criminal Complaint Case No. 1265 of 2003, the appellant - original complainant has preferred this appeal. The respondent is original accused. (Hereinafter appellant is referred as "complainant" and respondent is referred as "accused"). 2. The brief facts of the case are as under : The complainant is a permanent resident of Paratwada and having good relations with the accused. 3. The accused was in need of money for purchasing the field and therefore, requested the complainant for payment of amount of Rs. 40,000/-. The complainant having faith on him, gave amount of Rs. 40,000/- on 30.11.2002. 4. The complainant further contended that the accused issued cheque of Khamgaon Urban Cooperative Ltd. Bank, Branch Achalpur bearing Ch. No. 294217 of Rs. 40,000/-on 02.05.2003. The complainant deposited the said cheque in Punjab National Bank on 05.05.2003. but the same was returned back on 06.05.2003 with a memo showing that there is no sufficient fund in the account of accused. The complainant, therefore, issued notice to the accused on 17.05.2003 by Registered Post A.D. The notice was received by the accused on 20.05.2003. However, he did not pay the amount on or before 05.06.2003. The complainant, therefore, filed a complaint before the Judicial Magistrate First Class. 5. After verification of the complaint, process was issued under section 138 of the Negotiable Instruments Act. The accused appeared in the proceeding. The particulars of the offence were explained to him vide Exh.14. The accused pleaded not guilty and claimed to be tried. 6. After recording the evidence in the matter and after hearing both the sides, the learned Magistrate has acquitted the accused of the offence punishable under section 138 of the Negotiable Instruments Act by its order dated 28.06.2005. The said order is assailed by the complainant by way of appeal amongst the other grounds mentioned in the Appeal Memo. 7. I have heard both the learned counsel for the parties at length. 8. Shri Bhide, learned counsel for the complainant has submitted that the accused had issued a cheque dated 02.05.2003 of Rs. 40,000/- towards repayment of loan given by the complainant. The cheque was deposited in the Punjab National Bank, Branch Achalpur. 7. I have heard both the learned counsel for the parties at length. 8. Shri Bhide, learned counsel for the complainant has submitted that the accused had issued a cheque dated 02.05.2003 of Rs. 40,000/- towards repayment of loan given by the complainant. The cheque was deposited in the Punjab National Bank, Branch Achalpur. The cheque was dishonoured on 05/05/2003 and memo was given on 06.05.2003. The complainant has issued notice to the accused by Registered Post. The same notice was received by the accused. However, he has not paid the amount. Therefore, complaint was filed before the J.M.F.C. Court, Achalpur. He further submitted that the complainant has adduced oral evidence and proved the documents. The complainant has also examined her husband in support of her case. The accused has examined one defence witness in support of his defence. He further submitted that nothing is brought in the cross-examination of the complainant to disbelieve her. The accused is an Advocate by profession. He is aware of signing the cheque and he knows the law. '' The learned Magistrate has not considered the evidence on record and wrongly acquitted the accused. The appeal, therefore, be allowed. 9. Shri P.R. Agrawal, learned counsel for the accused has submitted that the evidence adduced by the complainant is contrary to her complaint. The affidavit of examination-inchief is the copy of complaint. The complainant has not shown the source of her income. The defence of the accused is probable one. The complainant has admitted that the cheque was given by the accused on the same date when loan was given to him. There was no transaction between the complainant and the accused. On the contrary, the transaction was between the husband of the complainant and the accused. The accused has adduced the evidence showing the amount of Rs. 10,000/- is paid to the husband of the complainant. He further submitted that this appeal is filed against acquittal. Therefore, there is limited scope in the appeal to interfere with the finding of acquittal. He further submitted that if two views are possible, the benefit should be given to the accused. The complainant has failed to establish her case and therefore, the learned Magistrate has rightly acquitted the accused. The appeal, therefore, be dismissed. 10. Therefore, there is limited scope in the appeal to interfere with the finding of acquittal. He further submitted that if two views are possible, the benefit should be given to the accused. The complainant has failed to establish her case and therefore, the learned Magistrate has rightly acquitted the accused. The appeal, therefore, be dismissed. 10. Considering the submission of the both the sides, I have perused the evidence on record with the help of learned counsel for the parties. It appears that in the complaint, the complainant has stated that the amount of Rs. 40,000/- was given to the accused on 30.11.2002 for '' the purpose of purchasing field. It is also averred that the accused gave cheque of Rs. 40,000/- on 02.05.2003 to her towards repayment of the said amount. In the affidavit filed by her, she has asserted the said fact in the affidavit. She was cross-examined by the accused. In the cross-examination, she admitted that she used to do household work and not having any business in her name either before or after marriage. She also stated that she is residing at Tilak Chouk locality of Paratwada and accused is residing at Achalpur in Malveshpura. Her husband was knowing the accused. In the crossexamination, it is also admitted by her that cheque was issued by the accused on the same date on which amount was given to the accused. She also admitted that the cheque issued by the accused for security of the loan amount which the accused had borrowed from them. 11. The complainant also examined her husband PW2 Pyarelal Gupta at Exh.27. In the evidence, he has stated that the accused borrowed amount of Rs. 40,000/- from his wife and towards repayment, he has given cheque on 02.05.2003. In the cross-examination, it was suggested to him that the accused had borrowed Rs. 10,000/- from him, but he denied. It was suggested to him that the said amount was repaid by the accused, but he denied. It was suggested to him that he has misused the cheque which was given by the accused to him while borrowing money, but he refused. 12. If the evidence of two witnesses is considered in proper perspective, the complainant has failed to prove that she has advanced Rs. 40,000/- to the accused on 30.11.2002. On the contrary, she admitted that the accused has given cheque on the same day. 12. If the evidence of two witnesses is considered in proper perspective, the complainant has failed to prove that she has advanced Rs. 40,000/- to the accused on 30.11.2002. On the contrary, she admitted that the accused has given cheque on the same day. If that is so, her evidence cannot be accepted that the accused has given cheque of Rs. 40,000/-on 02.05.2003. It appears that the cheque given for security was used for repayment of amount by showing that the same was given on 02.05.2003. 13. The accused has examined one witness DW1 Subhakhan Mohd. Khan at Exh.35. This witness has deposed that the accused has borrowed amount of Rs. 10,000/- from the husband of complainant in the month of November, 2002 and given two cheques to the husband of the complainant. He also deposed that the accused has returned the amount to the husband of the complainant. He was cross-examined by the complainant. In the cross-examination, he stated that he did not ask the accused as to why he was writing amount of Rs. 40,000/- on the cheque though he had borrowed Rs. 10,000/-. He also stated in the cross-examination that the transaction of the accused was with the husband of the complainant. But, he did not ask why cheque was written in the name of Kamlabai. At the same time, he stated that the blank cheque was given. The evidence of this witness suggests that the accused has obtained Rs. 10,000/- from the husband of the complainant and issued cheque in the name of wife i.e. the complainant. Nevertheless, the cheque was not issued on 02.05.2003 and the same was issued at the time of borrowing the amount. The defence of the accused appears to be probable one. The complainant had no source of income. The transaction must have been taken place between accused and husband of the complainant and the accused borrowed amount of Rs. 10,000/- from the husband of the complainant. Thus, the cheque was not given to the complainant for discharge of liability, as alleged by the complainant. The learned Magistrate has considered the evidence on record in proper perspective and arrived at right conclusion. 14. The learned counsel for the complainant has relied upon the ruling in the case of M/s. General Auto Sales vs. Vijayalakshmi D., reported in 2005 Criminal Law Journal 1454 . The learned Magistrate has considered the evidence on record in proper perspective and arrived at right conclusion. 14. The learned counsel for the complainant has relied upon the ruling in the case of M/s. General Auto Sales vs. Vijayalakshmi D., reported in 2005 Criminal Law Journal 1454 . In the above ruling, the Kerala High Court has held in para 6 that "the cheque given by a guarantor when bounced was found to be within the fold of section 138 of the N.I. Act. Necessarily, the cheque given as a security, if bounced, shall be the subject matter of a prosecution under Section 138 of N. I. Act. So the contention of the accused that Ext. P1 cheque was given only as a security will not enable him to escape from the clutches of law". In that case, the complainant was enforcing the liability and shown valid liability and therefore, it was held that even if the cheque was given by way of security, prosecution under Section 138 of the N. I. Act is maintainable. In the case at hand, the complainant failed to prove any valid liability and therefore, the accused cannot be held guilty under section 138 of the Negotiable Instruments Act. The learned counsel has also relied upon ruling in the case of Dr. Sampathkumar B.V. vs. Ms. Dr. K.G.V. Lakshmi, reported in 2006 Criminal Law Journal 2267 . In the above ruling, it is held that the cheque is issued as security for repayment of loan is no ground to dismiss the complaint. Issuance of cheque proved accused did not lead evidence to rebut the presumption under section 139 of the Negotiable Instruments Act, with regard to consideration. The accused is liable to be convicted. On the facts and circumstances of the case, the above ruling is not made applicable. In the case at hand, the accused has adduced evidence and rebutted the presumption under Section 139 of the N. I. Act with regard to consideration. The accused also adduced evidence to show that he has borrowed the amount of Rs. 10,000/- from the husband of the complainant and not from the complainant. Thus, the above ruling is not helpful to the complainant. 15. The learned counsel for the accused has relied upon the ruling in the case of Kishor L. Purohit vs. Prem Saxena & Anr., reported in 2017 ALL MR (Cri.) 148 . 10,000/- from the husband of the complainant and not from the complainant. Thus, the above ruling is not helpful to the complainant. 15. The learned counsel for the accused has relied upon the ruling in the case of Kishor L. Purohit vs. Prem Saxena & Anr., reported in 2017 ALL MR (Cri.) 148 . In the above ruling, this Court has held that legally enforceable debt or liability rebuttal of presumption. This Court has held that no doubt, there is presumption that cheque is issued in discharge of such legally enforceable liability and debts. The facts and circumstances appearing in the evidence of prosecution, in this case, go to show that the defence taken by the respondent that the cheque was for some other transaction is probable and therefore, one must say that presumption has stood rebutted. In the case at hand, the accused has shown by adducing evidence that the loan of Rs. 10,000/- was taken from the husband of the complainant and the same was repaid and therefore, the presumption stands rebutted. 16. Considering the evidence on record and after considering the submission put forth on behalf of the parties, I am of the view that the learned Magistrate has rightly appreciated the evidence on record and no interference of this Court is called for. The learned counsel for the accused has rightly pointed out that the Appellate Court has very little scope to interfere with the finding of the trial Court, in acquittal matter. The appeal filed by the appellant is devoid of any merit and liable to be dismissed and accordingly dismissed. No costs.