Bombay High Court
Rajesh S/O Kishorilal Girdhar vs Miss Sanjana D/O Krishna Khobragade & ... on 3 February, 2018
1 J-APEAL-347-07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.347 OF 2007
Rajesh s/o Kishorilal Girdhar,
Aged about : 34 ye ars,
Occ. Business, R/o 162,
MBK Building, Flat No.304,
Vaishnodevi Chowk,
Wardhman Nagar, Nagpur. ..... APPELLANT
(ORG.COMPLAINANT)
...V E R S U S...
1. Miss Sanjana d/o Krishna Khobragade,
Aged about : 26 years,
Occ. Business, R/o Near Maskasath,
Railway Bridge, Itwari Baripura,
Nagpur 440 002.
2. State of Maharashtra,
Through P.S.O. Tahasil,
Nagpur. ..... RESPONDENTS
(ORG. ACCUSED)
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None for the appellant.
Shri R. R. Vyas, Advocate for the respondent No.1.
Mrs. S. V. Kolhe, Additional Public Prosecutor for respondent No.2-State.
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CORAM:-
ARUN D. UPADHYE, J.
DATED :
03/02/2018.
JUDGMENT :
1) Being aggrieved by the judgment and order dated 29/04/2006 passed by the 5 th Joint Civil Judge, Junior Division and Judicial Magistrate first Class and (Special Court) under Section 138 of the Negotiable Instruments Act, Nagpur in Summary Criminal Complaint No.848/2005, the appellant - original complainant has ::: Uploaded on - 03/02/2018 ::: Downloaded on - 04/02/2018 02:16:22 ::: 2 J-APEAL-347-07.odt preferred this appeal. The brief facts of the case are as under :-
2) The appellant - complainant has filed a complaint under Section 138 of the Negotiable Instruments Act against the accused (the appellant hereinafter be referred as "complainant" and the respondent No.1 hereinafter be referred as "accused"). It is contended that he had cordial relations with the accused and her father since last several years. The accused was in need of money for her business purpose and therefore, she demanded amount of Rs.45,000/- as a hand loan from him. According to him, he had given loan amount to the tune of Rs.45,000/- to the accused. It is further contended that the accused has given cheque bearing No.113451 of Rs.45,000/- towards the repayment of the loan. He presented the said cheque in the Nagpur Nagrik Sahakari Bank Ltd., Ganjakhet Branch, Nagpur for realization.
However, the same was returned back unpaid with endorsement "funds insufficient". He thereafter issued a legal notice through RPAD. The same was served. The accused, however, not repaid. Therefore, he constrained to file a complaint before this Court.
3) In response to the Court summons, the accused appeared in the proceeding. After recording the evidence in the matter and on hearing both the sides, the learned Magistrate acquitted the accused for the offence punishable under Section 138 of the N.I.Act.
4) Feeling aggrieved by the said Judgment and order dated 29/04/2006 passed by the learned Magistrate, the complainant ::: Uploaded on - 03/02/2018 ::: Downloaded on - 04/02/2018 02:16:22 ::: 3 J-APEAL-347-07.odt has preferred this appeal.
5) None present for the appellant - complainant. I have heard Shri R.R. Vyas, the learned counsel for the respondent No.1 and Mrs. S. V. Kolhe, the learned APP for the respondent No.2-State at length.
6) Shri Vyas, the learned counsel for the respondent No.1-accused vehemently submitted that the notice issued by the complainant for demand of the amount after dishonour of cheque is in respect of Cheque No.117354 dated 23/09/2004 of Rs.45,000/-. However, the cheque No.113451 dated 22/09/2004 of Rs.45,000/- dishonoured is at Exh.15. He, therefore, submitted that the notice of demand is illegal and cannot be considered. He further submitted that there is no mention of interest in the amount claimed by the complainant. He also submitted that the income of the complainant is of Rs.5,000/- to Rs.6,000/- per month and therefore, there is no possibility that he advanced loan of Rs.80,000/-. The defence of the accused that she has taken Rs.22,000/- as hand loan from the complainant and given blank cheque for security. The accused has also examined two witnesses and proved the said defence. The learned Magistrate has considered the aspect of the case on both the sides and rightly acquitted the accused. The appeal, therefore, be dismissed.
7) The learned APP has submitted that the State is a formal party and therefore, necessary order be passed. ::: Uploaded on - 03/02/2018 ::: Downloaded on - 04/02/2018 02:16:22 :::
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8) Considering the submission of the learned counsel for the accused and after perusing the material placed on record, I am of the view that the impugned Judgment and order acquitting the accused for the offence under Section 138 of the N.I.Act is just and proper and no interference of this Court is called for.
9) It is to be noted that the complainant has stated in the complaint that the cheque of Rs.45,000/- was given by the accused and description of the cheque is given by him that cheque No.113451 dated 22/09/2004 of Rs.45,000/-. It further appears that the cheque is at Exh.15. However, the notice given by him vide Exh.18 is in respect of cheque No.117354 dated 23/09/2004 for Rs.45,000/-. The demand notice of the accused is different than the cheque mentioned in the complaint. The complainant though tried to show that there was typographical mistake, however, the same cannot be accepted. The complainant in the cross-examination has stated that he knows the accused since last four years. However, does not know the father of the accused. In the cross-examination, he also stated that the father of the accused met him in the year 2004 along with the accused. It was suggested to him that the amount of Rs.22,000/- was paid to the accused as hand loan and he obtained the blank cheque signed by the accused, but he denied. It was also suggested to him that he had also taken cheque from the father of the accused towards the repayment of loan of Rs.22,000/-, but he denied. The evidence of the complainant is ::: Uploaded on - 03/02/2018 ::: Downloaded on - 04/02/2018 02:16:22 ::: 5 J-APEAL-347-07.odt not cogent one to show that he has advanced loan of Rs.45,000/- to the accused and towards the repayment of the said loan, the cheque was issued by the accused. The presumption under Section 139 of the N.I.Act is not available to the complainant, as the said amount is not towards loan amount.
10) The accused has also adduced her evidence vide Exh.30 and denied the allegations made by the complainant in the complaint and also stated that the blank cheque was given towards security. She was cross-examined at length. However, nothing was brought on record to show that he has paid amount of Rs.45,000/- to her. The accused has also examined DW-2 Amit Suresh Puniyani at Exh.32 and DW-3 - Ritesh Fuke at Exh.33. Both these witnesses have stated that the complainant had taken blank cheque from the accused for the amount of loan of Rs.20,000/-. The defence of the accused appears to be probable one and therefore, the cheque at Exh.15 cannot be said to be given towards the loan of Rs.45,000/- as contended by the complainant. The learned Magistrate has considered all these aspects and rightly acquitted the accused. No interference of this Court is called for. The appeal filed by the complainant is devoid of any merit and liable to be dismissed and accordingly dismissed.
JUDGE Choulwar ::: Uploaded on - 03/02/2018 ::: Downloaded on - 04/02/2018 02:16:22 :::