Bombay High Court
Ranjit Singh Sethi vs Abdul Jalil Shaikh Abdulla on 29 January, 2013
Author: Abhay M. Thipsay
Bench: Abhay M. Thipsay
1 APEAL.928.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 928 OF 2006
RANJIT SINGH SETHI )
R/o Flat No. 63, D-2, Asmita Jyoti )
CHS Ltd.,Marve Road,Charkope Naka
Malad (W), Mumbai 400 095 ).. APPELLANT
VERSUS
ABDUL JALIL SHAIKH ABDULLA)
Working at Punjab National Bank, )
Vile Parle (W), Mumbai 400 049 )
Presently working at Punjab National )
Bank, Pump House Branch, Nirman )
Darshan, Opp. Sunita Hospital, Agari )
Nagar, Andheri (East),Mumbai 400093
2.THE STATE OF MAHARASHTRA).. RESPONDENTS
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Mr. Sachin U. Dhakephalkar, Advocate for the appellant
None for R. No. 1.
Smt. V. R. Bhonsale, APP for the State
CORAM:-ABHAY M. THIPSAY, J.
DATED : 29/01/2013
ORAL JUDGMENT:
The appellant had prosecuted respondent No. 1 herein on the allegation of having committed an offence punishable u/s 138 of the Negotiable Instruments Act. After holding a trial, the learned Metropolitan Magistrate's 44th Court, Andheri, Mumbai, came to the conclusion that the case against respondent No. 1 was not proved and, therefore, passed an order of acquittal. The appellant, being aggrieved by the said order of acquittal has filed the present appeal after obtaining leave of this court.
2. The appellant shall, hereinafter, be referred to as "the complainant" and respondent No. 1 as "the accused", for the sake of convenience and clarity.
3. The appeal was taken up for final hearing expeditiously 2/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 3 APEAL.928.06 at the instance of the complainant He being a senior citizen, insisted on an expeditious disposal of the appeal.
4. I have heard Mr. Sachin Dhakephalkar, the learned counsel for the appellant - complainant. Nobody appears for respondent No. 1 - accused. No submissions have been made by the learned APP on behalf of the State of Maharashtra.
5. I have gone through the entire evidence adduced during the trial. I have also gone through the judgment and order.
6. The substance of the complaint filed by the complainant was that the accused had a friendly relationship with the complainant and that the accused had an 5/8/2001 approached the complainant for a financial help in the sum of Rs.98,000/-.
The said amount was paid by the complainant on 8/8/2001, as a friendly loan, which the accused had promised to repay on or before 8/11/2001. That, the accused had executed a Demand Promissory Note dated 8/8/2001, for the sum of Rs.98,000/-, and had also given a cheque for the sum of Rs.98,000/- post dated as 8/11/2001, which was the date of repayment of the 3/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 4 APEAL.928.06 said loan. The loan is said to have been paid on 8/8/2001. That the said cheque was deposited with his bankers by the complainant on 12/11/2001 and it was dishonoured with the remark 'Insufficient Funds". The complainant thereafter gave a notice to the accused calling upon him to pay the amount of the said cheque but the accused did not make the payment as called for. It is under these circumstances that the complaint came to be filed against the accused.
7. During the trial, the complainant examined himself as a witness. The accused also examined himself as a defence witness. Certain documents were tendered in evidence by both the parties i.e. by the complainant as well as by the accused.
8. The case of the complainant before the trial court was categorical, namely, that the demand for a friendly loan was made on 5/8/2001; that the said loan was given on 8/8/2001 with the understanding that it was to be repaid within a period of three months and that a demand promissory note was executed by the accused on 8/8/2001. The case of the 4/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 5 APEAL.928.06 complainant is that it is at that time that the accused gave a post dated cheque dated as 8/11/2001 for the purpose of repaying the loan amount.
9. The complainant gave evidence consistently with his case. In the cross-examination, he said that he knew the accused for 12 to 13 years. It was suggested to him that an advertisement had been given by him in local newspaper to provide loans to bank employees to which he replied 'that he could not say about it'. It was suggested to the complainant that he was charging a penalty of Rs.100/- per day for delayed payment which suggestion was denied by him.
10. The accused came up with a specific case that he had obtained Rs.40,000/- from the complainant on which the complainant was charging interest @ 10%. The accused also categorically stated during his examination u/s 313 of the Code that penalty of Rs.100/- per day was being charged on the delayed payments. According to the accused, son of the complainant had once assaulted him (the accused) as the 5/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 6 APEAL.928.06 accused could not pay the interest.
11. In his evidence the accused stated that in the year 1999 there was an advertisement in daily newspaper 'Sandhyakal' calling upon bank employees to avail of loan and that a telephone number for contact had also been given in the said advertisement. According to the accused it is on contacting the complainant in this manner that he got acquainted with him.
The accused stated that a loan of Rs.40,000/- was given by the complainant to him on 10% interest and that at that time a blank cheque was obtained from the accused by the complainant. The accused claimed that towards the interest and principal, a total payment of Rs.60,000/- had been made by him to the complainant out of which an amount of Rs.23,000/-
was paid by cheque. The accused also said that because the son of the complainant had assaulted him (accused), he stopped paying the money, but he had already paid an amount of Rs.60,000/- till then.
12. In the cross-examination, the accused was asked whether 6/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 7 APEAL.928.06 he had any evidence of his having paid the the amount to the complainant. When the accused said that he had his bank -
passbook to prove that, he was, apparently challenged to produce the passbook in that regard, which was produced by the accused on the next date. The accused also produced his bank statements which were tendered in evidence, marked and exhibited.
There were entries showing some payments made by the accused to the complainant and these payments amounted to Rs.25,300/-.
13. The learned magistrate considered the evidence adduced by the parties and noticed certain relevant aspects of the matter.
He observed that though it was the case of the complainant that an amount of Rs.98,000/- was given by him to the accused as a friendly loan, there was no documentary evidence of such payment except the cheque itself, from which such inference was expected to be drawn The magistrate also observed that the cheque in question was type written. The magistrate also observed that the statement of 7/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 8 APEAL.928.06 account produced by the accused reflected certain payments made by the accused to the complainant. The magistrate also observed as follows:
"These periodical payments make this court to come to conclusion that there was certain understanding between the complainant and the accused for making the payments. The complainant nowhere makes out any such case despite confronted with the statement of account.
He has not made any attempt to explain as to for what purpose the payment to the tune of Rs.25,300/- was received by the complainant from the accused".
14. The magistrate, in view of these facts was of the opinion that the payments were made by the accused to the complainant towards the loan transaction.
15. The magistrate also observed the last entry in respect of the payments made to the complainant was dated 4/10/2001, 8/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 9 APEAL.928.06 which was prior to the cheque dated 8/11/2001 and, therefore, there was basis for believing that the payment was being made against the loan amount provided by the complainant to the accused. The magistrate observed that under the circumstances, when the complainant had apparently received certain amounts from the accused, it was not possible to hold that he was entitled to recover the amount of Rs.98,000/-. The magistrate observed that it was not the case of the complainant that he was entitled to recover an amount more than Rs.98,000/-. The magistrate observed that there was no explanation given by the complainant why he had received the amount in the year 1999-2000 and 2001 from the accused. The magistrate concluded that the facts averred by the complainant were selective and that he had not disclosed all the facts. That, the complainant had failed to explain the payments made to him by the accused was held against the complainant by the magistrate who came to the conclusion that going by the case of the complainant as put forth and considering the receipt of 9/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 10 APEAL.928.06 an amount of Rs.25,300/- by the complainant, it was not possible to hold that the complainant was entitled to recover the amount of Rs.98,000/- from the accused on 8/11/2001.
16. The learned counsel for the appellant submitted that the payments which had been made by the accused were not made to the complainant but to the wife of the complainant. In the first place, this was not stated before the magistrate at all and the basis of this claim is doubtful. In any case, the accused does not dispute that there are at least there are some entries which show payment made by the accused to the complainant.
Even assuming for the sake of argument that some of the entries merely show the payment made to the complainant's wife by the accused, which has not been proved, still, in the facts and circumstances of the case, the complainant was under
an obligation to explain as to under what circumstances his wife received money from the accused. The complainant has chosen to remain silent on this aspect, and as a matter of fact, it is not his case at all that there were some other transactions 10/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 11 APEAL.928.06 between her and the accused.
17. The learned counsel further submitted that the payments had been made prior to the giving of loan, i.e. before 8/8/2001.
He, therefore, submitted that these payments were, therefore, irrelevant.
18. I am unable to accept this. The date of loan as 8/8/2001 is only the claim of the complainant, and not an admitted position. Since there were some transactions between the accused and the complainant in the year 1999 itself and since these transactions have gone unexplained from the complainant's side, the inference that the real transaction between the complainant and the accused had not taken place on 8/8/2001 but had taken place before that, as claimed by the accused, may legitimately be drawn.
19. The crux of the matter is that, not only the complainant did not initially disclose the transactions between him and the accused, which had taken place prior to 8/8/2001, and rather challenged the accused when he claimed existence of such 11/13 ::: Downloaded on - 09/06/2013 19:36:12 ::: 12 APEAL.928.06 transactions, but also was unable to explain the transactions even after the accused had brought them on record. The lack of any explanation even after the transactions were brought on record is suspicious, even if that there was a complete silence about any such transaction in the complain, is ignored.
20. The conclusion of the magistrate that the defence of the accused was probable, is proper, legal and correct.
21. Even otherwise, it is well settled that while dealing with an appeal against acquittal, this court ought not to interfere in the matter, even if two views of the evidence adduced before the trial court are possible and the trial court has taken one of them. It is impossible to hold that the view taken by the magistrate is not a 'possible view' of the matter. It is not that the magistrate has ignored relevant and admissible evidence, or has based his conclusion on inadmissible evidence.
22. Since the view taken by the magistrate is undoubtedly a possible view of the matter, there is no scope for interfering with the impugned judgment and order.
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21. The appeal has no merit. The same is dismissed.
(ABHAY M. THIPSAY, J.) md.saleem 13/13 ::: Downloaded on - 09/06/2013 19:36:12 :::