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2019 DIGILAW 202 (PNJ)

Vijaya Bank v. Shimla Devi

2019-01-17

RAMENDRA JAIN

body2019
JUDGMENT Mr. Ramendra Jain, J. (Oral):- CRM-14168-2015 Prayer in this application under Section 5 of the Limitation Act is for condonation of delay of 82 days in filing the appeal. 2. Heard. 3. For the reasons mentioned in the application, delay of 82 days in filing the appeal is condoned. 4. CRM stands disposed of. CRM-A-727-MA-2015 5. Through this application under Section 378 (4) Cr.P.C., the complainant-Bank has sought leave to file appeal against judgment of the trial court dated 28.10.2014, dismissing its complaint under Section 138 of the Negotiable Instruments Act (for short, “Act”). 6. Briefly, complaint of the petitioner under Section 138 of the Act against respondent after holding trial was dismissed vide aforesaid order on the following grounds:- (1) Authorized signatory of the applicant-Bank namely Deena Nath-CW-1 in his affidavit (Ex.CW1/A) testified that respondent has issued cheque in question for discharge of her partial liability, whereas there is no word “partial liability” in the Act. (2) The amount claimed by the complaint was not inconsonance with the deposition of the witnesses to the allegations in the complaint. Therefore, basic requirement of proving liability of the respondent was not proved. 7. Learned counsel for the applicant relying upon judgment cited as 2012 (7)RCR (Criminal) 300, titled as “M/s Sai Auto Agencies, Amravati vs. Sheikh Yusuf Sheikh Umar” contends that the provisions under Section 138 of the Act applies to a cheque issued for the discharge, in whole or in part or any other liability. Therefore, finding of the trial court that complaint under Section 138 of the Act was not maintainable on account of alleging partial liability of the respondent is illegal. There was no contradiction in the pleadings and evidence led by the applicant. Therefore, impugned judgment of the trial court dismissing the complaint of the applicant being based on surmises and conjectures is liable to be dismissed. 8. On the other hand, learned counsel for the respondent vehemently opposing the above submissions of learned counsel for the applicant contends that respondent in her statement under Section 313 Cr.P.C. categorically deposed that she had discharged her entire liability to the applicant-bank. Therefore, nothing was recoverable from her. Various blank cheques were obtained by the applicant-bank from the respondent for securing its loan and one of them was misused by applicant-bank, on the basis of which, impugned complaint was filed. 9. Therefore, nothing was recoverable from her. Various blank cheques were obtained by the applicant-bank from the respondent for securing its loan and one of them was misused by applicant-bank, on the basis of which, impugned complaint was filed. 9. Having given thoughtful consideration to the rival submissions, this Court finds instant petition merits acceptance for the reasons to follow:- 1. It is undisputed that respondent had obtained loan from the applicant-bank. However, plea of the respondent is that she had discharged her complete liability. She has also deposed to this effect in her statement under Section 313 Cr.P.C. However, she did not lead any evidence or produce any documentary evidence in support of her above assertion. In case, respondent had discharged her entire liability, in that eventuality, she must be having receipts of the applicant-bank showing repayment of loan amount, but nothing sort of was produced by her. Therefore, the trial court was legally bound to draw presumption in favour of the applicant-bank being holder of the cheque in question pertaining to the account of the respondent under Section 139 of the Act. 2. Respondent did not deny her signatures on the cheque in question and that it did not belong to her account. Therefore, presumption under Section 139 of the Act was required to be drawn in favour of the applicant-bank from this angle too. 3. Two loans were advanced to the respondent by applicant-bank. One was for Rs.9.5 lakhs under VKCC Scheme. Another was for Rs.4.5 lakhs as term loan, totalling Rs.14 lakhs. Respondent, repaid some of the amount. Her final liability for repayment of loan amount remained as Rs.9.5 lakhs, against which, she issued the cheque in question in favour of applicant-bank. 4. There is no contradiction in the pleadings of the applicant-Bank and statements of its witness. The witnesses of the applicant-bank had simply clarified the manner of transaction, which has been mis-interpreted by the trial court. 10. In Sheikh Yusuf Shikh Umar’s case (supra), Bombay High Court has held that provisions under Section 138 of the Act are applicable even in a case, a cheque is issued for the discharge of the liability or debt in whole or in part. Therefore, finding of the trial court that word “partial liability” mentioned by the witness CW-1 Deena Nath in his affidavit is erroneous and illegal and is liable to be set aside. 11. Therefore, finding of the trial court that word “partial liability” mentioned by the witness CW-1 Deena Nath in his affidavit is erroneous and illegal and is liable to be set aside. 11. In view of the discussion made above, the application is accepted. Leave to appeal is granted after hearing both the sides. 12. Registry is directed to assign criminal appeal number to this case. 13. The impugned judgment dated 28.10.2014 of the trial court is set aside. Resultantly, respondent is held guilty under Section 138 of the Act. The trial court is directed to afford opportunity of hearing to the respondent on the quantum of sentence before passing order of sentence. Immediately, thereafter, the respondent shall be taken into custody for undergoing the sentence. 14. Parties are directed to appear before the trial court on 31.01.2019. 15. Copy of this order be sent to concerned ld. Chief Judicial Magistrate for information and necessary action.