The admissibility of certified copies of entries as evidence under Section 40 of the Maharashtra Co-operative Societies Act and Rule 34 of the Maharashtra Co-operative Societies Rule.

1. Leave granted. Appeal admitted.

2. Appeal be registered.

3. By consent heard finally at the stage of admission.

4. This appeal is directed against the judgment and order dated 22.12.2012, of the Judicial Magistrate First Class, Kurundwad,whereby he acquitted the Respondent No.2 accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

5. The appellant original complainant is a co-operative society registered under Maharashtra Co-operative Societies Act. The appellant society is having business of accepting deposits and giving loans to the members and is in the business of finance. The respondent No.2 was working as a Secretary of the said society nearly for a period of six years prior to 2008. He was aware of day-today affairs of the society. So also aware of disbursement of the loans and gold loan by the society. It is the case of appellant that the respondent No.2 without taking into confidence the Chairman, Vice Chairman or other members of the Managing Committee, forged the signatures and on the basis of false investments receipts, withdrew an amount from the society account and misappropriated the funds of society. The original complainant is a co-operative society, who has kept money in Federal Bank in Kurundwad. So also kept fixed deposit with Jaiprakash Urban Co-operative Society, Kurundwad and Dharmanath Urban Co-operative Society. At the time of filing complaint ie. in the year 2008, the amount due including interest till 31st July, 2007, was Rs.8,57,744/-. The complainant, therefore, demanded said money from the respondent No.2. However, he did not show readyness to pay the said amount. Besides this amount, it is the case of complainant that the respondent No.2 by misusing his powers and by forged documents in respect of gold loan, withdrew an amount of Rs.2,44,000/-and utilized for his personal use. Thus, the total amount misappropriated by the respondent accused is Rs.11,17,787/-and therefore, complainant society issued notice demanding the said amount. In response to notice, respondent accused gave two cheques bearing Nos.572516 and 572517 dated 1.1.2008 for Rs.5,00,000/- and for Rs.5,17,787/-, respectively, towards payment of misappropriated amount. The complainant deposited both the cheques, but the same were returned with endorsement, “Refer to the drawer”. Thereafter notice dated 6.2.2008 was sent by the appellant through its lawyer demanding the amount of dishonoured cheques which was received to respondent No.2 on 9.2.2008. However, respondent accused neither respond nor paid the said amount. The society, therefore, lodged complaint before the learned Judicial Magistrate First Class, under section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance.

6. The respondent accused pleaded not guilty and thereafter the trial commenced.

7. The appellant filed affidavit of Sadashiv Magdum, the Chairman of the Society in lieu of examination-in-chief to prove the fact that the cheques were dishonoured and the amounts mentioned in the cheques were given for legally enforceable debt and the respondent is liable to pay the same. The appellant society also examined Deepak Mhaske as C.W.2. The respondent No.2 neither lead any evidence nor examine himself. Both the witnesses were cross-examined by the respondent at length. A defence was put up that the respondent No.2 has taken loan in the name of his wife which was repaid by him, but at that time by way of security two blank cheques were taken by the bank from him. The said two blank cheques were subsequently used by the appellant society by filling figures and the amount claimed is not at all due against the respondent No.2.

8. The learned Judge formulated the points in respect of discharge of liability of the complainant and whether the cheques were dishonoured on account of insufficient funds and whether there was proper service of notice to the accused for the payment of dishonoured cheques o