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2018 DIGILAW 149 (BOM)

Shyam v. Savita Bhagwantrao Patil

2018-01-16

ROHIT B.DEO

body2018
JUDGMENT Rohit B. Deo, J. - Challenge is to the judgment dated 04.1.2006 passed by the learned Chief Judicial Magistrate, Amravati in Summary Criminal Case 217/2005, acquitting the respondent/accused of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short). 2. The complaint (Exhibit 1) states that accused Savita Patil was in need of money and requested the complainant for hand loan of Rs. 97,000/and assured that the loan would be repaid as and when required by the complainant. The complainant extended hand loan of Rs. 97,000/to the accused who issued cheque drawn on Canara Bank, Amravati datedtowards repayment. The cheque was dishonoured due to insufficient funds in the account of the accused, statutory notice datedwas issued which was returned back with the endorsement "not claimed". The complainant also issued notice under certificate of posting which is deemed to be served. In view of the noncompliance, the complainant was constrained to prefer the complaint. 3. The complainant deposed in consonance with the complaint. In crossexamination, the complainant states that he is acquainted with the accused as she was working as Manager of the Girls Hostel and the complainant was the Mess Contractor. The suggestion that the complainant and the accused jointly undertook the contract of catering of the Girls Hostel, is denied. The complainant states that in all four cheques were handed over to the accused. In the three remaining cheques other than the disputed cheque, one cheque was for Rs. 95,000/and the other was for Rs. 1,25,000/. The complainant is not in a position to state when he extended the hand loan to the accused. In so far as the three cheques other than the disputed cheque, the deposition is that the accused gave the complainant cheques since the complainant was to receive some amount from the accused. The complainant admits that those cheques were given as security. The complainant admits that he is not in a position to state when he gave the amount covered by the three cheques (other than the disputed cheque) to the accused. He is not in a position to even disclose the year in which the amount was given to the accused. He admits that he is facing prosecution under Section 138 of the Act instituted by the accused as regards cheque for Rs. 50,000/. The complainant does not recollect if the prosecution was instituted in August 2002. He is not in a position to even disclose the year in which the amount was given to the accused. He admits that he is facing prosecution under Section 138 of the Act instituted by the accused as regards cheque for Rs. 50,000/. The complainant does not recollect if the prosecution was instituted in August 2002. He denies the suggestion that another notice datedwas issued by the accused demanding Rs. 60,000/paid by her to the complainant. The witness was confronted with the reply notice issued on his behalf to the accused (Exhibit 26). The complainant admits that his wife Rachana lodged the police report against him, the accused and others. He, however, denies the suggestion that since the said report, relations between him and the accused became strained. He is not in a position to state if the words and figures in cheque (Exhibit 17) are in different ink than the name and signature on the cheque. He denies the suggestion that there is overwriting in the date 13.11.2004. He admits that there is no counter signature on the date. 4. In the statement under section 313 of the Criminal Procedure Code, 1973 the accused stated that she did not receive Rs. 97,000/from the complainant as loan. She states that she is falsely implicated since she instituted proceedings under Section 138 of the Act against the complainant and since the wife of the complainant lodged report. 5. The learned Magistrate was alive to the statutory presumptions under the Act. The learned Magistrate has recorded a finding that the statutory presumptions are duly rebutted. The learned Magistrate has noted that the complainant suppressed several facts from the Court. It is noted that from reply notice (Exhibit 26) issued by the complainant it is apparent that according to the accused she extended hand loan of Rs. 50,000/to the complainant in February 2002, the complainant issued cheque dated 27.6.2002 which was dishonoured and accused Savita instituted proceedings under Section 138 of the Act. Accused Savita also advanced Rs. 40,000/in January 2001, the complainant issued cheque 175858 towards repayment which was dishonoured and proceedings under Section 138 of the Act were initiated by accused Savita. The learned Magistrate noted from perusal of Exhibit 26, that the complainant admitted receiving Rs. 50,000/from accused Savita. However, the complainant stated in Exhibit 26 that the cheque for Rs. 40,000/was mistakenly issued. 40,000/in January 2001, the complainant issued cheque 175858 towards repayment which was dishonoured and proceedings under Section 138 of the Act were initiated by accused Savita. The learned Magistrate noted from perusal of Exhibit 26, that the complainant admitted receiving Rs. 50,000/from accused Savita. However, the complainant stated in Exhibit 26 that the cheque for Rs. 40,000/was mistakenly issued. The learned Magistrate has also considered notice dated 24.9.2009 issued by the complainant to the accused (Exhibit 27) alleging that the complainant advanced Rs. 4,25,000/to the accused from time to time. The learned Magistrate has held the contents of the said notice not believable inter alia on the ground that Exhibit 26 disclosed that according to the complainant, he refunded the amount of Rs. 50,000/to accused Savita on 20.3.2002 and it was, therefore, inconceivable that within six months the complainant could have extended loan of Rs. 4,25,000/to accused Savita. It is in the backdrop of the said facts which came on record that the learned Magistrate appreciated the failure of the complainant to disclose the date or month in which he extended the loan to accused Savita. 6. The learned Magistrate has noted that the contents of the cheque were in different ink. The defence of the accused that the cheques were issued to the accused for making payment to employees of the Girls Hostel which was jointly managed by the complainant and the accused is found probable. 7. It is true that the accused has not stepped into the witness box. But then, it is trite law that the accused need not adduce direct evidence to create doubt about the veracity of the complainant''s case. The accused may rely on material produced by the complainant or the material which is extracted in the crossexamination of the complainant or his witnesses to probablise the defence. The burden on the accused to show that the debt or liability did not exist or that the existence of the debt or liability is not probable, is required to be discharged on preponderance of probabilities. 8. The learned Magistrate has taken a view which is a possible view. In the absence of any serious error or miscarriage of justice, this Court would be sole to interfere in the judgment of acquittal. No such infirmity is brought to my notice. 9. The appeal is sans merit and is rejected. 8. The learned Magistrate has taken a view which is a possible view. In the absence of any serious error or miscarriage of justice, this Court would be sole to interfere in the judgment of acquittal. No such infirmity is brought to my notice. 9. The appeal is sans merit and is rejected. The fees of the appointed Counsel are fixed at Rs. 3,000/.