Bombay High Court
Nirdosh Khushalchand Kochar vs Ajay V Ingale on 10 October, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.682 OF 2006
Nirdosh s/o. Khushalchand Kochar,
Aged Occ. : Business,
R/o.Vidhya, Vidhya Vihar Colony,
Ranapratap Nagar, Nagpur . ...APPELLANT
...V E R S U S...
Ajay s/o. V. Ingale,
Ra/o. Starkey Town,
Chindwara Road, Nagpur ...RESPONDENT
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Mr.S.D. Harode, Counsel for appellant.
Mr.R. P. Dixit, Counsel for respondent.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
:29.09. 2017
DATE OF PRONOUNCING THE JUDGMENT
: 10.10.2017
JUDGMENT
The appellant is aggrieved by the judgment and order dated 8.2.2006 in Summary Criminal Case 1576 of 2004 delivered by 5th Joint Civil Judge Junior Division & Judicial Magistrate First Class, Nagpur, by and under which the respondent is acquitted of ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 2 offence punishable under section 138 of the Negotiable Instruments Act, 1881.
2 The learned Magistrate has recorded a finding that the complaint is not properly instituted and that the complainant has not proved that the accused issued the disputed cheque for Rs. 50,000/- towards discharge of existing liability. A perusal of the complaint Exh. 1 reveals that the complainant is described as Nirdosh Khushalchand Kochar (HUF) acting through power of attorney Shri. Dattatraya Shamrao Dandekar. The verification statement recorded under section 200 of the Criminal Procedure Code is of the said Dattatray Shamrao Dandekar. 3 One Nirdosh Khushalchand Kochar has deposed as CW 1. He states that he extended a hand loan of Rs. 50,000/- to the accused on 29.3.2003 which was to be refunded within three months. The accused did not refund the loan within three months and after several reminders from the complainant ultimately issued cheque 8989 dated 26.3.2004 drawn on the Nagpur District Central Cooperative Bank Limited, in favour of the complainant. The said witness has deposed that the cheque is signed by the accused and the other writing in the cheque are also in the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 3 handwriting of the accused. The said witness has referred to the certificate of Chartered Accountant Kamal Kothari. Subject to the objection of the accused, which was to be decided at the stage of arguments, the said certificate was marked Exh. 19. The cheque was marked Exh. 20, although the accused raised certain objections to exhibit the cheque.
4 In the cross examination of Nirdosh Kochar it is brought on record that he is a Medical Practitioner and is not engaged in business. It is further brought on record that the said witness is a income tax assessee since several years. The witness however, is not in a position to state as to whether the hand loan transaction is reflected in the income tax returns. The witness is not in a position to state since how many years is he acquainted with the accused. He admits that he does not know the family members of the accused. The witness admits that accused has not written the name of the payee or the date in the cheque. He denies the suggestion that the contents of the cheque were not written in his presence by the accused. He admits that the name of the payee and the date in the cheque was written by his employee, whose name he is not in a position to remember. He denies the suggestion that the name of the payee and the date is in ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 4 the handwriting of Chartered Accountant Kamal Kothari. He admits that Kamal Kothari is his Chartered Account since several years. He denies the suggestion that the cheque was handed over to him by Kamal Kothari. He admits that he has not produced before the court the record on the basis of which Exh. 19 is issued. 5 Be it noted, that the author of the certificate Exh. 19 Kamal Kothari is not examined. The certificate Exh. 19 on which the complainant is heavily relying, purports to certify that Dr. Nirdosh Kochar had given a hand loan of Rs. 50,000/- to Mr. Ajay Ingle on 29.3.2003 and that the said amount was given in cash as per the records.
6 The accused has examined himself as DW1. He has deposed that he handed over the disputed cheque to Kamal Kohari in the year 1997. The accused has deposed that since Kamal Kothari was a friend, he approached Kamal Kothari for finance. Kamal Kothari agreed to arrange financial help against the security of cheques. The accused handed over three cheques to Kamal Kothari on which the name & date were left blank. However, since Kamal Kothari did not arrange for the loan, he demanded that the cheques to be returned. Kamal Kothari informed the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 5 accused that the cheques were destroyed. The accused has produced on record cheque book Exh. 36 to prove the entries to the effect that the cheques were issued to Kamal Kothari on 9.11.1997. He has also produced on record summons from Judicial Magistrate First Class, Kolhapur in case 949 of 2005 (Exh.
37) and copy of the complaint (Exh. 38) which reveal that the complaint is instituted by Tri-Star Distributors Private Limited of which Kamal Kothari is the director.
In the cross examination, accused admits that he did not have any written acknowledgement from Kamal Kothari evidencing the receipt of cheque Exh. 20. He admits that complaint Exh. 38 is not in relation to Exh. 20. In response to a question in the cross examination, the accused states that the name of the complainant on cheque Exh. 20 is in the handwriting of Kamal Kothari.
7 Shri. S.D. Harode, the learned counsel for the complainant has invited my attention to the judgments of the Hon'ble Supreme Court in R. Mohan Vs. A.K. Vijaya Kumar and A.C. Narayanan Vs. State of Maharashtra & another reported in 2012 ALL SCR 1870 and (2014) 11 SCC 790, respectively . The observations in paragraph 8 and 9 in R. Mohan Vs.A.K. Vijaya ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 6 Kumar, on which Shri. S.D. Harode placed reliance, are observations made by the Hon'ble Supreme Court in the context of the evidence on record and do not take the case of the complainant any further. The later judgment is relied upon to buttress the submission that the complaint signed and filed through power of attorney holder is maintainable in law and there is nothing in section 200 of Criminal Procedure Code or section 138, 142 and 145 of the Negotiable Instruments Act, 1881 to suggest otherwise.
8 That complaint signed and presented by duly authorized attorney is maintainable, is too well settled to warrant an elaborate the discussion. However, the learned Magistrate has recorded a finding of fact, and rightly so, that the power of attorney under the authority of which Shri. Dattatray Dandekar purportedly signed and filed the complaint and recorded the verification statement, is not proved. The finding recorded by the learned Magistrate that the complaint is not properly instituted, is therefore, unexceptionable.
Even on merits, the findings recorded by the learned Magistrate that the complainant has not proved that the accused issued the disputed cheque, towards discharge of existing liability, ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 7 is a possible view and is certainly not perverse. 9 Exh. 22 - notice recites that the accused and complainant have business relations. However, the complainant who is a Medical Practitioner admits that he has no other business, he is not in a position to remember the purpose of the hand loan. The complainant denies business relationship with accused which version is inconsistent with the recital in the notice Exh. 22. 10 The complainant states in the examination in chief that all the entries in the cheque are in the handwriting of the accused. However, in the cross examination, the complainant admits that the date and name of the payee are not written by the accused. The complainant admits that author of Exh. 19 Kamal Kothari is his Chartered Accountant since many years. Kamal Kothari is however, not examined. The contents of the certificate Exh. 19 on which the complainant relies, are not proved since neither the primary record on the basis of which the certificate is issued is produced nor is the author of the certificate Kamal Kothari examined.
11 The complainant has not placed on record the income ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 8 tax returns to prove the loan transaction. The accused has entered the witness box and has deposed that he does not know the complainant and has not transacted with the complainant at any point of time. The accused has deposed that he handed over Cheque Exh. 20 to Kamal Kothari. The name of the payee and the date were not filled in. The said cheque was one of the three handed over to Kamal Kothari who had assured to arrange finance on security of cheques. However, since Kamal Kothari did not arrange the finance, the accused demanded the return of cheques. The accused has deposed that although Kamal Kothari assured that the cheques were destroyed, the cheques were misused. The accused has also produced on record the complaint instituted at Kolhapur by Tri-Star Distributor, of which Kamal Kothari is concededly either a director or a proprietor, against the accused. Pertinently, Dattatray Shamrao Dandekar who has signed and filed the complaint purportedly as power of attorney holder has also acted as the agent or representative of Tri-Star Distributors, in instituting the complaint at Kolhapur.
12 In my considered opinion, the accused has more than probabilized the defence. The version of the complainant that he extended a loan of Rs. 50,000/- to the accused is extremely ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 ::: 9 doubtful. The evidence on record would suggest that he did not know the accused. The failure of the complainant to examine Kamal Kothari or to prove the loan transaction by producing the income tax or other record, is near fatal.
On a holistic consideration of the evidence on record, I do not find any perversity in the judgment of acquittal.
The appeal is sans merit and is rejected.
Bail bond shall stand discharged.
The appeal is dismissed.
JUDGE Belkhede, PA ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:28 :::