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2018 DIGILAW 964 (BOM)

Lumdeo v. Ravindra

2018-04-05

ROHIT B.DEO

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JUDGMENT Rohit B. Deo, J. (Oral) - Challenge is to the judgment and order dated 19.05.2005 rendered by the Judicial Magistrate First Class, Bramhapuri in Summary Criminal Case 719/2002, by and under which, the accused/respondent is acquitted offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short). 2. The appellant original complainant instituted complaint under Section 138 read with Section 142 of the Act, the gist of which complaint is that the accused borrowed Rs. 17,000/in cash from the complainant on 22.04.2002 at the residence of the complainant at Bramhapuri and as security issued cheque dated 10.07.2002 drawn on the United Western Bank Limited Wadsa (Desaiganj). The cheque was dishonoured, statutory notice was issued which the accused refused to accept and since the accused did not make the payment covered by the cheque within the statutorily prescribed period, the complainant approached the court under Section 138 read with Section 142 of the Act. 3. The accused did not dispute the issuance of cheque. In statement of the accused recorded under section 313 of the Criminal Procedure Code, 1973 the accused denied that he borrowed Rs. 17,000/from the complainant and the cheque was issued as security. However, in response to question 13 the accused stated that he refunded Rs. 17,000/in presence of witnesses on 20.09.2002, the complainant did not return the cheque. The learned counsel for the complainant Shri Shukla relies on the said answer in response to question 13 to urge that the accused admitted that he borrowed Rs. 17,000/which is evident from the use of expression "refunded". I am afraid, I cannot concur. The use of the expression "refunded" must be understood in the context of the entire statement and the defence. 4. The accused is relying on the material extracted in the cross examination of the complainant and three defence witnesses to rebut the statutory presumption under Section 139 of the Act, which is undoubtedly activated since the accused did not dispute the issuance of cheque. 5. The examination in chief of the complainant is broadly consistent with the averments in the complaint. However, in the cross examination the credibility of the complainant is severely dented. It is elicited that the elder son of the complainant Pundlik married Sau. Punam in 2002. However, the complainant denies the suggestion that the name of Sau. Punam before marriage was Urmila (D.W.3). However, he admits that Sau. However, in the cross examination the credibility of the complainant is severely dented. It is elicited that the elder son of the complainant Pundlik married Sau. Punam in 2002. However, the complainant denies the suggestion that the name of Sau. Punam before marriage was Urmila (D.W.3). However, he admits that Sau. Punam is the post marriage name of his daughter in law. Surprisingly, the complainant denies that accused is his relative. The falsehood of denial is obvious since it has come in evidence that the accused is the brother in law of Urmila being the husband of her sister Geeta. The complainant denies the suggestion that he received Rs. 17,000/from the accused on 20.09.2002 in the presence of his son Pundlik and daughter in law Punam (D.W.3 Urmila) and that Bablu Darvekar and Ashok Dasarwar the friends of the accused were also present along with Sau. Manisha Harde (D.W.2) and the wife of the accused. 6. D.W.1 Dhananjay Darvekar has deposed that in the month of September 2002, he accompanied the accused Ravindra and others to the house of the complainant and accused Ravindra gave Rs. 17,000/in cash to the complainant. 7. D.W.2 Manisha Harde, who is the younger sister of Punam (D.W.3 Urmila) has deposed that the marriage of her sister Urmila, and her marriage, was solemnized on the very same day at the house of the accused Ravindra. She has further deposed that in September 2002, the accused paid Rs. 17,000/to the complainant in her presence and in the presence of her husband Jagdish and and Bablu Darvekar. 8. D.W.3 Punam Warjurkar, whose premarriage name is Urmila, is the daughter in law of the complainant. She has proved a letter Exh.74 written by her and addressed to the accused (Exh.74). She has deposed that she mentioned her name as Urmila in Exh.74 which was her name prior to marriage. She has deposed that when her marriage was arranged, it was agreed that an amount of Rs. 17,000/shall be paid to the complainant as demanded by the complainant. 9. Exhibit 74, which is a letter addressed by the daughter in law of the complainant to the accused reveals that Urmila was harassed for money despite giving an amount of Rs. 17,000/and that she was severely beaten and harassed and pressurized to bring an amount of Rs. 50,000/. 10. 9. Exhibit 74, which is a letter addressed by the daughter in law of the complainant to the accused reveals that Urmila was harassed for money despite giving an amount of Rs. 17,000/and that she was severely beaten and harassed and pressurized to bring an amount of Rs. 50,000/. 10. The learned Magistrate has considered the evidence holistically and no infirmity much less perversity in approach or in appreciation of evidence is brought to my notice. The finding recorded by the learned Magistrate that the complainant did not prove that the cheque was issued against legally enforceable existing debt or liability, is unexceptionable. No compelling case is made out for this court to interfere with the judgment of acquittal. 11. The appeal is sans merit and is rejected.