Bombay High Court
Mahendra Gulabchand Kochar vs Sakharam Ramdas Patil on 30 March, 2009
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 202 OF 2009
Mahendra Gulabchand Kochar,
R/o Adinath Nagar, Garkheda,
Aurangabad. APPELLANT
VERSUS
Sakharam Ramdas Patil,
R/o Gujar Jamboli, Tq.
and Dist. Nandurbar. RESPONDENT
WITH
CRIMINAL APPEAL NO. 203 OF 2009
Mahendra Gulabchand Kochar,
R/o Adinath Nagar, Garkheda,
Aurangabad. APPELLANT
VERSUS
Sakharam Ramdas Patil,
R/o Gujar Jamboli, Tq.
and Dist. Nandurbar. RESPONDENT
WITH
CRIMINAL APPEAL NO. 592 OF 2008
Mahendra Gulabchand Kochar,
R/o Adinath Nagar, Garkheda,
Aurangabad. APPELLANT
VERSUS
Sakharam Ramdas Patil,
R/o Gujar Jamboli, Tq.
and Dist. Nandurbar. RESPONDENT
WITH
CRIMINAL APPEAL NO. 18 OF 2009
Mahendra Gulabchand Kochar,
R/o Adinath Nagar, Garkheda,
Aurangabad. APPELLANT
VERSUS
Sakharam Ramdas Patil,
R/o Gujar Jamboli, Tq.
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(2)
and Dist. Nandurbar. RESPONDENT
WITH
CRIMINAL APPEAL NO. 204 OF 2009
Mahendra Gulabchand Kochar,
R/o Adinath Nagar, Garkheda,
Aurangabad. APPELLANT
VERSUS
Sakharam Ramdas Patil,
R/o Gujar Jamboli, Tq.
and Dist. Nandurbar. RESPONDENT
.....
Mr. M.K. Goyanka, advocate for the appellant in all five appeals.
Mr. J.V. Deshpande, advocate for the respondent in all five appeals.
.....
ig [CORAM: V.R. KINGAONKAR, J.]
DATE : 30th March, 2009
-----------------------
ORAL JUDGEMENT :
1. These five (5) appeals are being disposed of
together in as much as the facts and the questions of
law involved therein are almost identical.
2. The appellant is original complainant. He filed private complaint cases (S.C.C. No. 5664/2003, S.C.C. No. 5711/2003, S.C.C. No. 5712/2003, S.C.C. No. 5665/2003 and S.C.C. No. 5728/2003) against the respondent for offence punishable under section 138 of the Negotiable Instruments Act. The respondent was tried in all the above five (5) private complaint cases. The learned Judicial Magistrate (F.C.), ::: Downloaded on - 09/06/2013 14:28:50 ::: (3) Aurangabad acquitted the respondent in all the five (5) private complaint cases for the offence punishable under section 138 of the Negotiable Instruments Act.
Hence, these appeals against judgements of acquittal.
3. It is not necessary to set out the complainant's case stated in each of the private complaint case in as much as the averments made in all the complaint cases are identical. Suffice it to say, the appellant/complainant alleged that he is a legal practitioner and had given loan of Rs. three (3) lacs to the respondent by making payments from time to time. The respondent promised to pay the handloan amount vide a promissory note (----------------) executed by him on November 10th, 1988. The respondent did not, however, repay the amounts as promised though demanded on various occasions. The respondent eventually executed a security bond (---------) dated May 15th, 2003 whereby he agreed to repay the amount outstanding against him. He issued post dated cheques as described in the "Hamipatra"
(security bond). He had issued in all ten (10) cheques. Out of them, the five (5) cheques were deposited in the bank account as per the scheduled dates of payments but the same were dishonoured for the reason that there was no sufficient fund in the account of the respondent. The appellant alleges that he sent a demand notice dated 14-08-2003 under ::: Downloaded on - 09/06/2013 14:28:50 ::: (4) certificate of posting at the address of the respondent. The notice of demand could have been served, deemingly, on the respondent on August 21st, 2003. He failed to repay the amount inspite of service of the demand notice. Consequently, the five (5) private complaint cases were instituted.
4. The respondent raised multiple defences. The respondent denied that he issued the cheques in favour of the appellant (complainant). He denied execution of the Promissory Note (-----------------) and the "-----------" (security bond) as referred in the private complaint ig cases. He further denied that he was served with demand notice by the petitioner. His contention before the learned Judicial Magistrate was that he is an agriculturist and used to cultivate agricultural land of the appellant's uncle by name Jeevan Jain. He submitted that he had financial dealing with said Jeevan Jain, one Jairam Babuwani (Sindhi) and Vasudeo Babuwani (Sindhi) between 1999 to 2001. He used to cultivate their lands. He issued blank cheques to them, including to the uncle of the appellant/complainant, by way of security. He was never acquainted with the appellant and never transacted with him. He asserted that the blank cheques issued in favour of the uncle of the appellant and the other two (2) persons were misused for filing false complaints. He denied that the demand notices ::: Downloaded on - 09/06/2013 14:28:50 ::: (5) were served on him.
5. The parties led oral and documentary evidence in support of the rival contentions. Considering the material placed on record, the learned Judicial Magistrate held that the appellant failed to establish the necessary ingredients of offence punishable under section 138 of the Negotiable Instruments Act. Hence, the respondent came to be acquitted.
6. Mr. Goyanka would submit that the learned Judicial Magistrate did not properly appreciate the evidence of the appellant/complainant. He would submit that presumption available under section 139 of the Negotiable Instruments Act is not rebutted by the respondent. He contended that the notice of demand was issued on proper address and, therefore, service thereof ought to have been presumed. He contended that the cheques were, no doubt, issued after the period of three (3) years from the transaction of the loan, yet, the very fact that the respondent executed Deed of Security styled as "Hamipatra" on May 15th, 2003, alongwith the cheques in question, would make it explicit that the debt was revived. He contended that the acquittal of the respondent is improper and liable to be interfered with. As against this, Mr. Deshpande supports the impugned judgements.
::: Downloaded on - 09/06/2013 14:28:50 ::: (6)7. The circumstances brought on record need to be highlighted. There is no dispute about the fact that the appellant was a student of law in 1998. He was taking education in a Law College at Pune. He admittedly completed the LL.B. course in 2000. Thus, between 1996 till 2000, he was a law student of Law College at Pune. The respondent is an agriculturist and resides in a remote village called Gujar Jambholi, situated in Nandurbar Tahsil. The uncle of the appellant, namely, Jeevan Jain runs a Petrol Pump at Nandurbar.
8. Clinching ig question is whether the five (5) cheques were issued by the respondent in discharge of any legal liability. The appellant filed evidence by way of affidavit (Exh-23) wherein he gave details of the date of the cheques and the dates on which it was dishonoured, etc. It is vaguely stated in the affidavit that the appellant and the respondent were having cordial relations since long. No details are stated about various amounts borrowed by the respondent from time to time. It is stated that the respondent executed a cumulative promissory note (---------------) in his favour on November 10th, 1998. So also, the affidavit refers to execution of the Deed of Security (---------) dated May 15th, 2003.
The affidavit also refers to sending of the demand notice through U.P.C. ::: Downloaded on - 09/06/2013 14:28:50 ::: (7)
9. Cross-examination of the appellant reveals that he did not give loan of Rs. three (3) lacs to the respondent in lumpsum, but it was given from time to time over a period of one (1) year. He states that he was having money with him because he was dealing in business of plotting and business of vending chilly powder. He admits, unequivocally, that he had not obtained any license from the competent authority for dealing in business of chilly powder vending. He did not produce any document to show that he was dealing in business of plotting. He did not produce any single document ig to show that the cash amounts were paid by him to the respondent through his bank account, from time to time and that separate receipts were obtained from the latter. His bald statement that he was on cordial terms with the respondent is not sufficient. For, he was a young student aged about 24 whereas the respondent was old man aged about
65. The long friendship or cordial relationship between them could not be matter of presumption. He did not examine scribe of the documents referred to by him. It is true, no doubt, that both the documents i.e. "--------------" (promissory note) and "-----------" (security bond) are referred by him in his affidavit. Unless these documents are duly proved, the same cannot be read in evidence. I mean to say, requirement of proof of the documents cannot ::: Downloaded on - 09/06/2013 14:28:50 ::: (8) be dispensed with. A Single Bench of this Court in "Geeta Geeta Marine Services Pvt. Ltd. and another v.
state and another" 2009 (2) Mh.L.J. 410, 410 held that the practice of marking of a document referred to in the cross-examination is only for the purposes of locating and identifying the said document. It is observed :
"Marking a document as exhibit by such a process based on consistent practice the execution, contents and genuineness of the document in accordance with law of the document.
ig Therefore, marking a document in
cross-examination in this manner will not
dispense with the proof of the document in
accordance with law of evidence."
It was also a case for offence punishable under
section 138 of the Negotiable Instruments Act. I am
in respectful agreement with the observations of the
learned Single Bench in this behalf. So, unless the
documents were duly proved either by making a positive statement about execution thereof in presence of the complainant or by examining the scribe, mere filing thereof could not be of any avail to the complainant/appellant. The appellant did not take any step to prove these documents except and save filing of the same on record. Obviously, they cannot be read ::: Downloaded on - 09/06/2013 14:28:50 ::: (9) in evidence, particularly, when the respondent categorically denied execution of the same.
10. The cross-examination of the appellant would further indicate that the counter foils shown to him which were filed alongwith list (Exh-24) indicated name of "Jeevan" and "Vasudeo Babuwani". The appellant admitted that there was one signature on the backside of the counter foil, but was unable to tell whether that was signature of Vasudeo Babuwani. In any case, neither of the counter foils shows that cheques were issued in name of the appellant. Had it been a fact that those counter foils were forged by the respondent, the appellant could have urged the learned Magistrate to take appropriate action against him. He could have summoned Vasudeo Babuwani to show that the counter foil does not bear signature of the latter. The version of the appellant does not furnish substratum to believe that he was having sufficient funds to lend the amounts to the respondent.
11. Nextly, the demand notices were sent under certificate of posting. It appears that three (3) notices were issued together under common certificate of posting (Exh-28). The address of the respondent is, no doubt, the same as is shown in the bail bond furnished by him. The version of the appellant, however, reveals that he has no knowledge whether the ::: Downloaded on - 09/06/2013 14:28:50 ::: (10) post office of village Gujar Jambholi is situated at village Gujar Bhawani. He admits that demand notice was not sent by registered post. It has come on the record that there is no post office at village Gujar Jambholi. The learned advocate for the appellant seeks to place reliance on a Single Bench judgement in case of "M/s M/s C.E.I. Consultancy and another v. M/s Modi World Infotech and another" 2002 CRI.L.J. 2731 (A.P.).
(A.P.) It has been held by the learned Single Judge of Andhra Pradesh High Court that notice of demand need not be sent by registered post and it could be sent by certificate of posting. There is presumption about due service of such notice only if it is shown that the notice is sent on proper address. The presumption can be drawn that the addressee received notice. However, in the present case, the post office address is not given in the postal certificate. So, it cannot be presumed that the notices were sent through the post office at Gujar Bhawani.
12. The learned advocate for the appellant would point out that in the previous application filed by the respondent, the details of counter foils of the cheques were not stated. He took me through the cross-examination of the respondent and submitted that the story put forward by the respondent is afterthought. He seeks to rely on "A.V. A.V. Murthy v.
B.S. Nagabasavanna" (AIR 2002 S.C. 985).
985) It was a ::: Downloaded on - 09/06/2013 14:28:50 ::: (11) case wherein the complaint was dismissed at the threshold. The Apex Court expounded the legal position pertaining to section 139 of the Negotiable Instruments Act in the given circumstances. He also referred to "S. S. Parameshwarappa and another v. S. Choodappa", 2007 CRI.L.J. 586 (Karnataka), "H. Narasimha Rao v. Venkataram R." (2007 CRI.L.J. 583), "K.N. Beena v. Muniyappan and another" 2001 CRI.L.J. 4745 and "M/s Lakshmiratan Cotton Mills Co.Ltd. v.
The Aluminium Corporation of India Ltd." AIR 1971 S.C. 1482.1482
13. There are cases and cases. One cannot be oblivious of the situation which is projected through peculiar facts brought on surface of the record while dealing with a particular case. In the present case, the following circumstances are significant.
(a) The appellant (complainant) was a young student of law at the material time;
(b) There was considerable gap between age group of the appellant and the respondent which normally would not be indicative of cordial and friendly relationship since long as alleged by him;
(c) No substantial reason is ascribed as to why in ::: Downloaded on - 09/06/2013 14:28:50 ::: (12) 2003, the respondent executed the deed of security (---------) and issued the cheques in respect of the time-barred debts;
(d) The appellant could not establish that he had the sufficient income source and could have shelled out the amounts for giving the handloans;
(e) The appellant did not give details of the handloans given from time to time though vaguely, he states that within period of one (1) year, the transactions were spread over;
(f) There is absolutely no documentary evidence to show that the handloans were given on particular dates by the appellant under any kind of acknowledgement by the respondent;
(g) The document viz. "promissory note"
(----------------) and "Deed of Security"
(-----------) referred to in the complaints are not duly proved by the appellant by adducing necessary evidence;
(h) The respondent relied upon counter foils of
the cheques which do not show name of the
appellant as the person to whom the same were
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(13)
issued; and
(i) There is probability that the respondent was
having financial transactions with uncle of
the appellant as well as Jairam Babuwani and
Vasudeo Babuwani and, therefore, he had issued the said cheques in their favour.
14. Considering the preponderance of probability, the defence of the respondent is rather corroborated by the aforesaid circumstances. The Apex Court in "Krishna Krishna Janardhan Bhat v. Dattatraya G. Hegde"
(2008) 2
SCC (Cri.) 166,
166 held that the accused may
discharge his burden on the basis of materials already brought on record. It is not necessary for the accused to prove his defence beyond reasonable realm of doubt. The standard of proof required on the part of an accused and that of the prosecution are different. Inference of preponderance of probabilities can be drawn even from the circumstances brought during cross-examination of the complainant and other material available on record. In this view of the matter, I am of the opinion that the learned Judicial Magistrate has drawn proper inferences. The impugned judgemnts of acquittal are, therefore, sustainable.
15. In the result, the appeals are dismissed. The ::: Downloaded on - 09/06/2013 14:28:50 ::: (14) impugned orders of acquittal are confirmed.
[ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL202-09 ::: Downloaded on - 09/06/2013 14:28:50 :::