Gujarat High Court
Satyam Co-Operative Credit Society Ltd vs State Of Gujarat & on 28 January, 2013
Author: Harsha Devani
Bench: Harsha Devani
SATYAM CO-OPERATIVE CREDIT SOCIETY LTD....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/12531/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.12531 of 2012 ============================================= SATYAM CO-OPERATIVE CREDIT SOCIETY LTD....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ============================================= Appearance: MR AMAR D MITHANI, ADVOCATE for the Applicant MR YV VAGHELA, ADVOCATE for the Applicant MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 2 MR HK PATEL, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1 CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 28/01/2013 ORAL ORDER
1. By this application under section 378(4) of the Code of Criminal Procedure, 1973, the applicant (original complainant) seeks special leave to appeal against the judgment and order dated 18th May, 2012 passed by the learned Additional Chief Judicial Magistrate, Junagadh in Criminal Case No.2806/2010 whereby the accused has been acquitted of the offence under section 138 of the Negotiable Instruments Act, 1887 (hereinafter referred to as the Act ).
2. Mr. Y.V. Vaghela, learned advocate for the applicant assailed the impugned judgment and order by submitting that the learned Judge has failed to consider the evidence on record in the light of the provisions of law and has arrived at an erroneous conclusion. It was submitted that the respondent accused has admitted that he had taken a loan of Rs.17,000/- from the applicant and that the same was still outstanding and further that the cheque had been issued by way of an advance cheque against the said loan. It was submitted that under the circumstances, there was a presumption in favour of the complainant under section 138 of the Act and that the accused had not rebutted the same and, therefore also, the learned Judge was not justified in acquitting him. It was submitted that the applicant had by leading cogent and convincing evidence established his case against the accused; however, the learned Judge had failed to appreciate the evidence on record in proper perspective and held that the applicant had not proved the charges levelled against the accused beyond reasonable doubt.
3. The prosecution case is that the complainant society is a registered society and advances different types of loans for the purpose of business and also provides the facility of cash credit. The accused had taken a loan of Rs.17,000/- and towards its instalment had issued a cheque dated 20th July, 2010 bearing No.072325 for Rs.42,000/- from his account bearing No.273 with the Peoples Co-operative Bank Ltd., Junagadh, Veraval branch which came to be returned with an endorsement of stop payment on 27th July, 2010 pursuant to which a legal notice came to be issued to the accused on 31st July, 2010. Upon service of the notice, the accused had given a reply, however, the amount under the cheque in question had not been paid and as such, the accused had committed the offence punishable under section 138 of the Act. Upon the lodging of the complaint, the authorised officer of the complainant society came to be examined on oath on 30th August, 2010 and summons came to be issued to the accused. Upon culmination of the trial, the learned Additional Chief Judicial Magistrate, Junagadh found that the applicant had not established the charge against the accused beyond reasonable doubt and acquitted him of the alleged offence.
4. A perusal of the record of the case reveals that during the course of trial, the prosecution had examined the complainant Kalpesh Chandrakant Mandaliya at Exh.16. He had relied upon documents Exh.26 to 32. Exh.26 was the cheque dated 20th July, 2010, Exh.27 was the cheque return memo, Exh.31 was the notice dated 31st July, 2010 issued under section 138 of the Act and Exh.32 was the reply to the notice.
5. While not disputing his signature, the defence of the accused was to the effect that his cheque-book was lost in the year 2003 and that he had accordingly informed the bank regarding the same vide a telegram Exh.37 and had also ordered stop payment.
6. A perusal of the record of the case reveals that the entire case of the complainant is based upon the statutory presumption under section 138 of the Act and no other evidence has been led. The complainant - Kalpesh Chandrakant Mandaliya has deposed to the effect that the accused had taken a loan of Rs.17,000/- towards which he was required to pay, in all, Rs.42,000/- by way of instalments against which he had issued a cheque dated 20th July, 2010 drawn on his account No.273 with the Peoples Co-operative Bank Ltd., Junagadh bearing cheque No.072325 which came to be returned on 27th July, 2010 with the endorsement stop payment . On 31st July, 2010, the accused was issued a notice through advocate. Despite service of such notice, the accused had not paid the amount hence, the complaint came to be lodged. In his cross-examination, he has admitted that the society while granting the loan obtains an advance cheque towards the loan. He has also accepted that he has not produced any documents in respect of the loan in the trial proceedings. He has also accepted that the amount as well as the date in the cheque (Exh.26) has been filled in by his office. He has further accepted that he is not aware as to how many years prior thereto, the cheque had been received by the society and as to when the details had been filled in. He has also accepted that advance cheques are taken from the borrower while granting the loan and that in this case, the cheque in question has been taken by way of an advance cheque. He has further accepted that the loan transaction was entered into in May, 2002. This, in sum and substance, is the evidence which has been led by the complainant during the course of trial.
7. As noticed earlier, the accused in his defence has stated that in the year 2003, he had lost his cheque-book in respect of his account bearing No.273 with the Veraval Peoples Cooperative Bank Ltd., Junagadh Branch and that he had informed the bank about the same vide a telegram (Exh.37) and had ordered stop payment of the said cheques. While it is true that the accused has not denied having taken a loan of Rs.17,000/- from the complainant society and that the cheque had been given by way of an advance cheque towards payment of such loan, however, the record reveals that a loan of Rs.17,000/- had been given in May, 2002 and the cheque in question was sought to be encashed in the year 2010. Besides, except for the cheque and the documents evidencing the return of the cheque and the notice under section 138 of the Act, the complainant has not produced any documentary evidence in support of the loan transaction to establish the exact amount payable by the accused to it. It cannot be gainsaid that the complainant being a credit society must have maintained statements of the dues of the accused, however, no such record has been produced before the court to show as to how though the loan advanced to the accused was for an amount of Rs.17,000/-, the complainant was entitled to recover Rs.42,000/-. Moreover, it has come on record that in respect of the loan amount, a lavad suit had been instituted by the complainant against the accused which had been adjudicated in favour of the complainant and Darkhast (execution) proceedings have been instituted before the court of competent jurisdiction. It also appears that the accused, at the relevant time, had approached the Gujarat Co-operative Tribunal against the judgment rendered in the lavad suit. However, all these facts have not been disclosed by the complainant before the trial court.
8. From the evidence which has come on record, it is apparent that the accused had obtained a loan of Rs.17,000/- from the complainant and had not repaid the same, in respect of which proceedings had been instituted before the appropriate forum and were pending at the relevant time. The evidence also reveals that the cheque in question had been given by way of security towards payment of the loan amount. However, against a loan amount of Rs.17,000/-, the complainant had filled in an amount of Rs.42,000/- and presented the cheque before the bank, which came to be dishonoured on account of instructions of stop payment having been issued. True it is that there is a presumption under section 138 of the Act that a cheque has been issued towards payment of a debt or other liability, however, in the present case, even according to the complainant the amount advanced by way of loan was Rs.17,000/-. Under the circumstances, it was for the complainant to lead cogent and convincing evidence to show as to how it was entitled to recover an amount of Rs.42,000/- from the accused. In the absence of any such evidence having been led, the complainant cannot invoke the presumption under section 138 of the Act. It may be recalled that except for the evidence discussed hereinabove, the complainant has not led any evidence whatsoever to establish the amount of interest payable in respect of the loan amount so as to be entitled to recover an amount of Rs.42,000/- from the accused. Under the circumstances, evidently the applicant has not established the charges levelled against the accused beyond reasonable doubt.
9. In the aforesaid premises, no prima facie case has been made out by the applicant warranting a detailed scrutiny of the material on record. Leave is, therefore, refused and the application is rejected.
( Harsha Devani, J. ) hki Page 6 of 6