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2018 DIGILAW 1554 (BOM)

Ramzan Khan v. Shakir Ali

2018-06-30

Z.A.HAQ

body2018
JUDGMENT Z.A. Haq, J. (Oral) - None appears for the respondent/accused though served. Heard Shri S.A. Banik, Advocate for the appellant/original complainant. 2. The original complainant has filed this appeal to challenge the judgment passed by the learned Magistrate by which the complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 is dismissed. 3. The complainant had filed the complaint under section 138 of the Negotiable Instruments Act contending that the cheque given by the respondent/accused to repay the amount payable by the accused is dishonoured and inspite of service of notice demanding the amount, the accused has failed to pay the amount receivable by the complainant. It is undisputed that the cheque (Exh. No.32) was given by the accused to the complainant, the complainant had presented it to the bank, however, the cheque was not honoured and was returned to the complainant alongwith memo containing endorsement to the effect that the funds in the account of the accused were insufficient. The learned Magistrate has recorded that after the cheque came to be dishonoured, the complainant had issued notice to the accused and the notice was served on the accused. The complaint is dismissed on the ground that the complainant has failed to prove that the cheque was given by the accused to discharge legal liability. 4. The evidence on record shows that there had been certain transactions between the complainant and the accused. In the complaint, the complainant claimed that he had given hand loan of Rs. 50,000/- (Rs. 36,000/- by cheque and Rs. 14,000/- cash). The documents on record show that the complainant had given amount of Rs. 38,000/- (Rs. Thirty Eight Thousand) by cheque and in the evidence, the complainant claimed that an amount of Rs. 12,000/- (Rs. Twelve Thousand) was given in cash. There were some alterations in the entries on the cheque (Exh. No.32). The learned Magistrate has recorded that the facts on record create doubt about genuineness of claim of complainant that amount of Rs. 50,000/- (Rs. Fifty Thousand) was given as hand loan to the accused and the cheque (Exh. No.32) was given by the accused to repay the amount of loan. 5. After examining the matter, I find that the learned Magistrate has committed an error by dismissing the complaint, overlooking the presumption created by section 139 of the Negotiable Instruments Act, 1881. 50,000/- (Rs. Fifty Thousand) was given as hand loan to the accused and the cheque (Exh. No.32) was given by the accused to repay the amount of loan. 5. After examining the matter, I find that the learned Magistrate has committed an error by dismissing the complaint, overlooking the presumption created by section 139 of the Negotiable Instruments Act, 1881. The learned Magistrate has wrongly placed burden on the complainant to prove that the cheque (Exh.32) was given by the accused to repay the amount of loan. I find that the accused has not been able to establish on record that the cheque (Exh. No.32) was given by him to the complainant for some purpose other than to repay the amount of loan, as claimed by the complainant. Apart from this, there is nothing on record to show that the accused refuted the claim of the complainant after receiving the notice sent by the complainant demanding the amount, after the cheque came to be dishonoured. There is no explanation as to why the accused has not demanded the cheque (Exh. No.32) from the complainant even after the notice demanding the amount of Rs. 50,000/- (Rs. Fifty Thousand) was served by the complainant. 6. In the facts of the case, I find that the conclusions of learned Magistrate are not sustainable. In my view, the complainant has proved his claim and the evidence on record is sufficient to hold that the accused is liable to be convicted under section 138 of the Negotiable Instruments Act. Hence, the following order: (i). The impugned judgment is set aside. (ii) It is held that the respondent/accused is guilty of commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881. (iii) The respondent/accused is directed to deposit an amount of Rs. 1,00,000/-(Rs. One Lakh) within three months. On deposit of the amount by the accused, an amount of Rs. 90,000/- (Rs. Ninety Thousand) be given to the appellant/complainant. (iv) If the respondent/accused fails to deposit the amount of Rs. 1,00,000/-( Rs. One Lakh) within three months, he shall undergo imprisonment for two months. (v) The appeal is allowed in the above terms. (vi) The Registry to send the copy of this judgment to the respondent/accused on his address by speed post acknowledgement due. (iv) If the respondent/accused fails to deposit the amount of Rs. 1,00,000/-( Rs. One Lakh) within three months, he shall undergo imprisonment for two months. (v) The appeal is allowed in the above terms. (vi) The Registry to send the copy of this judgment to the respondent/accused on his address by speed post acknowledgement due. (vi) The Advocate for the appellant shall also send copy of this judgment to the respondent/accused by speed post acknowledgement due and file affidavit of compliance on record of this appeal, within two weeks.