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2018 DIGILAW 330 (BOM)

Jeewan Alamchand Paryani v. Ramchand

2018-02-03

A.D.UPADHYE

body2018
JUDGMENT : 1. Being aggrieved by the Judgment and order dated 07/03/2006 passed by the Judicial Magistrate, First Class (Special Court) 138 of N.I. Act, Nagpur in S.C.C. No. 2796/2005, the appellant-complainant has preferred this appeal. The learned Judicial Magistrate, First Class by the impugned Judgment and order acquitted the respondent No. 1-accused for the offence punishable under section 138of the Negotiable Instruments Act. (the appellant hereinafter be referred as "complainant" and the respondent No. 1 hereinafter be referred as "accused"). The brief facts of the case are as under: 2. The appellant-complainant has filed a complaint under section 138of the Negotiable Instruments Act. The appellant has contended that the respondent No. 1-accused was in need of money and approached to him in the month of April, 2002 for hand loan of Rs. 85,000/. The appellant has given hand loan of Rs. 85,000/to him. It is further contended that the accused assured to repay the amount within three months. However, failed to repay the amount, as agreed. The appellant, thereafter, demanded the amount from him. The accused therefore, issued three cheques to repay the amount. The appellant has presented the said cheques in the bank. However, all the cheques were dishonoured with endorsement "insufficient fund". The appellant thereafter, issued a legal notice to the accused. The accused approached to him and agreed to give two cheques of Rs. 30,000/each for full and final settlement of the hand loan. 3. It is the case of the appellant that thereafter, two cheques of Rs. 30,000/each dated 31/01/2004 and 28/03/2004 were issued by the accused in favour of the complainant. The complainant thereafter, presented the cheques in the bank but the same were dishonoured for reason "funds insufficient". The complainant has issued notice to the accused through counsel on 12/04/2004 calling upon him to make the payment of cheque amount within 15 days from the receipt of the notice. The accused, however, failed to repay the amount. The complainant, therefore, constrained to file this complaint. 4. In response to the summons, the accused appeared in the proceeding after recording the evidence in the matter and on hearing both the sides, the learned Magistrate has acquitted the accused for the offence punishable under section 138of the Negotiable Instruments Act by its Judgment and order dated 07/03/2006. 5. The complainant, therefore, constrained to file this complaint. 4. In response to the summons, the accused appeared in the proceeding after recording the evidence in the matter and on hearing both the sides, the learned Magistrate has acquitted the accused for the offence punishable under section 138of the Negotiable Instruments Act by its Judgment and order dated 07/03/2006. 5. Feeling aggrieved by the said Judgment and order dated 07/03/2006 passed by the learned Magistrate, the complainant has preferred this appeal amongst the grounds mentioned in the Memo of Appeal. 6. None present for the appellant-complainant. Shri G.R. Kothari, the learned counsel holding for Shri V.R. Choudhari, the learned counsel for the respondent No. 1 accused and Mrs. S.V. Kolhe, the learned Additional Public Prosecutor for the respondent No. 2 State. 7. Shri Kothari, the learned counsel for the accused has submitted that the complainant has filed a complaint for dishonour of cheque at Exh.19 dated 28/03/2004. He further submitted that the notice at Exh.22 was issued by the complainant and reply was given to the said notice vide Exh.50 by the accused. The complainant, however, not disclosed the said fact till his cross-examination. He further submitted that the blank cheque was given by the accused towards the purchase of the land and agreements are at Exhibits Nos. 41 and 42. The learned Magistrate has considered the case on both the sides and rightly acquitted from the offence of charge. No interference of this Court is called for. The appeal, therefore, be dismissed. 8. Considering the submission of the learned counsel for the accused, I have gone through the material on record as well as the impugned order, I do not find any illegality in the Judgment and order passed by the learned Magistrate for the offence punishable under section 138of the Negotiable Instruments Act. 9. It is to be noted that as per the case of the complainant in the month of April, 2002, the accused approached and demanded hand loan of Rs. 85,000/and therefore, he has paid Rs. 85,000/to him by three cheques. It is the case of the complainant that all these three cheques were dishonoured but thereafter, there was settlement between him and the accused and for full and final settlement, it was agreed that Rs. 60,000/- to be paid by the accused to him and accordingly, the accused gave two cheques of Rs. 85,000/to him by three cheques. It is the case of the complainant that all these three cheques were dishonoured but thereafter, there was settlement between him and the accused and for full and final settlement, it was agreed that Rs. 60,000/- to be paid by the accused to him and accordingly, the accused gave two cheques of Rs. 30,000/- each in his favour dated 31/01/2004 and 28/03/2004. According to the complainant, the cheque issued by the accused was dishonoured on 31/03/2004 which came to his knowledge on 02/04/2004 and therefore, he issued notice vide Exh.22 which was duly served upon him. In the evidence of the complainant, it was brought on record that he has received reply of the accused vide Exh.47 to his notice Ext.22. However, the complainant has not disclosed the same till his cross-examination. The complainant has not taken any action for dishonour of earlier three cheques of Rs. 85,000/-. He has also not explained as to why he has given up amount of Rs. 25,000/- payable by the accused as per the earlier three cheques. The defence of the accused appears to be probable. The conduct of the complainant creates doubt. 10. The documentary evidence brought on record in the cross-examination vide Exh.35 to 52 supports the defence of the accused. The possibility could not be ruled out that the cheque Exh.19 was given by the accused to the complainant as a security while entering into the agreement of sale with Rajendraprasad Singh, as per the Exh.41 and 42. The learned Magistrate has rightly acquitted the accused. No interference of this Court is called for. The appeal filed by the complainant is devoid of any merit and liable to be dismissed and accordingly, dismissed.