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2018 DIGILAW 15 (BOM)

Kancharla Guneshwara Rao (k. g. Rao) v. Dipak

2018-01-04

ROHIT B.DEO

body2018
JUDGMENT Rohit B. Deo, J. - The appellant, who is the original complainant in Criminal Case 12/2005 instituted under the provisions of section 138 read with section 142 of the Negotiable Instruments Act, 1881 (''Act'' for short) is challenging the judgment and order dated 13.03.2009 passed by the Judicial Magistrate First Class, Bhadrawati, by and under which, the respondent (original accused) is acquitted of the offence punishable under the Act. 2. Heard Shri S.V. Sirpurkar, the learned Counsel for the appellant and Shri N.R. Bhishikar, the learned Counsel for the respondent. 3. Shri S.V. Sirpurkar, the learned counsel for the complainant contends that the judgment impugned dangerously borders on perversity. The acquittal is on the premise that the complainant failed to prove that the disputed cheque was returned unpaid due to want of sufficient funds in the account of the accused. The premise is predicated on an error in the memo of return which refers to cheque 0016376 while the disputed cheque is 0016373. The submission is, that the complainant on noticing the error, proved beyond reasonable doubt that the reference to cheque 0016376 was an error and even otherwise, in the teeth of the evidence on record, the error in the memo of return was irrelevant and insignificant. The learned counsel for the accused supports the judgment and order impugned. He would further submit, that even otherwise the complainant failed to prove that the disputed cheque was issued towards discharge of legally enforceable debt or liability. The complainant is engaged in the business of illegal money lending and the disputed cheque is misused although the entire amount covered by the cheque was duly paid, is the submission. 4. The gist of the complaint is that the accused issued cheque dated 16.11.2004 bearing number 0016373 for Rs. 50,000/drawn on the Chandrapur District Central Cooperative Bank Limited, Ordnance Factory Branch, Chandrapur. The cheque was presented for encashment and was dishonoured. The intimation of dishonor was accompanied by letter of the Chandrapur District Central Cooperative Bank Limited dated 20.11.2004 referring to funds insufficient as the reason for dishonor. The complainant issued the statutory notice which was received by the accused who did not comply. 5. The complainant stepped into the witness box and deposed that the cheque was issued towards refund of earnest money. The complainant issued the statutory notice which was received by the accused who did not comply. 5. The complainant stepped into the witness box and deposed that the cheque was issued towards refund of earnest money. The complainant was subjected to gruelling crossexamination which would reveal that it was not at all the defence of the accused that the disputed cheque Exh.23 bearing number 0016373 was not returned unpaid for want of sufficient funds in the account of the accused. The defence, as is evident from the trend and tenor of the cross-examination is that the complainant is a money lender who is misusing the disputed cheque Exh.23 although the amount of Rs. 50,000/which was lent to the accused was paid in entirety. 6. However, the complainant examined Gopichand Ganvir, the then Manager of the Chandrapur District Central Cooperative Bank Limited as C.W.2. It is during the crossexamination of the said witness that it was brought on record that the cheque return memo refers to cheque 0016376, while the disputed cheque bears number 0016373. Presumably the complainant noticed the error only during the cross-examination of C.W.2 and examined one Rajkumar Kulkarni the incumbent Manager of the Chandrapur District Central Cooperative Bank Limited as C.W.5 who deposed that the number of the cheque is mentioned incorrectly due to inadvertence. The complainant also examined one Ganesh Madavi as C.W.6 to prove that the number mentioned in return memo Exh.39 is wrongly mentioned and that the memo of return as a fact pertains to the disputed cheque Exh.23. The Clerk who committed the error in writing the wrong number in the memo of return Exh.39 was examined as P.W.7. 7. The accused did not step into the witness box. However, one Dipak Bhati an Officer of the State Bank of India, Chandrapur was examined as D.W.1 to prove the payment of an amount of Rs. 10,000/by the accused to the complainant vide cheque 148274. Advocate Sanjay Sirpurkar was examined as D.W.2 to prove the notice issued by the son of the complainant to the accused and the wife of the accused. 8. In the statement recorded under section 313 of the Criminal Procedure Code, 1973 the accused denied every incriminating material put to him and stated that the complainant is in the habit of instituting false proceedings. 9. 8. In the statement recorded under section 313 of the Criminal Procedure Code, 1973 the accused denied every incriminating material put to him and stated that the complainant is in the habit of instituting false proceedings. 9. Concededly, the cheque return memo Exh.39 does make a reference to cheque 0016376 while the disputed cheque Exh.23 is 0016373. However, it is difficult to agree with the learned Magistrate who has recorded the finding of acquittal holding that the complainant failed to prove that the disputed cheque Exh.23 was not returned unpaid due to want of sufficient funds. The dishonor of cheque is a fact which the complainant may prove, if the dishonor is disputed, by any evidence not necessarily restricted to the cheque return memo. Be it noted, that the accused did not reply to the statutory notice. Nor did the accused, while cross examining the complainant, suggest that cheque Exh.23 was not returned unpaid due to insufficient funds in the account of the accused. The accused did not suggest to the complainant that he did not present the disputed cheque Exh.23 for encashment much less that upon presentation Exh.23 was not dishonoured. The issuance of cheque Exh.23 for Rs. 50,000/by the accused to the complainant was never in dispute. The defence of the accused was that the complainant was a money lender whose modus operandi was to obtain from the borrower agreement to sell as security. The accused suggested to the complainant that the entire amount of loan of Rs. 50,000/was duly paid and the disputed cheque Exh.23 was misused to institute the prosecution in the greed of extracting more amount from the accused. In the teeth of the evidence on record, the judgment and order of acquittal is wholly unsustainable. 10. However, having given my anxious consideration to the entire evidence on record, I find that there are other serious and contentious issues which have not been addressed in any detail by the learned Magistrate presumably since the view taken was that the complainant did not prove the dishonor of the disputed cheque. In view of the order which I propose to make, it would not be appropriate to discuss in detail the evidence. However, the issues which require consideration in some detail are whether the cheque was issued towards discharge of an existing debt and whether the debt was legally enforceable. 11. In view of the order which I propose to make, it would not be appropriate to discuss in detail the evidence. However, the issues which require consideration in some detail are whether the cheque was issued towards discharge of an existing debt and whether the debt was legally enforceable. 11. On holistic consideration, while holding that the judgment and order is unsustainable, I would remit the proceedings to the learned Magistrate for a fresh decision in accordance with law. The learned Magistrate shall proceed on the basis that the disputed cheque Exh.23 was returned unpaid due to want of sufficient funds in the account of the accused. Every other question is left open for determination. 12. The appeal is partly allowed. The record and proceedings be sent back to the learned Magistrate who is requested to decide the Summary Criminal Case 12/2005 within a period of one year from the receipt of record and proceedings, after giving opportunity to the parties to adduce any further evidence, if so adviced. 13. The appeal is disposed of.