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2019 Supreme(Bom) 885
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, J.
Amit Digvijay Singh – Appellant
Versus
Gokuldas Jagannath Bhutada - Respondent
Criminal Application No. 702 of 2019
Decided On : 19-07-2019
S.V. Marwadi, Adv., N.M. Nadar, Adv., S.R. Agarkar, Adv., Mayhank Bagla, Adv., Jainish Jain, Adv.
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – Loan – Process – Application takes an exception to the order passed by the 6th Judicial Magistrate First Class, thereby issuing process against applicant for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 – Present applicant is an accused in the Summary Case and first Respondent is original complainant before the said Court – It was stated in the complaint that, complainant is an agriculturist and resident of Kasabe Vani, Taluka Dindori, District Nashik. – The accused and the complainant were known to each other and has had good acquaintances and were friends since long. – It is alleged that, the Accused met with the complainant and represented that he was in need of money for his business. – Accordingly, the accused requested the complainant to give him the hand loan of Rs. 30,00,000/- for the purpose of his various businesses. – The accused assured the complainant that the said amount will be refunded when money will be available with him. – Having a cordial relationship with the Accused, the complainant relying upon the said assurance of the Accused paid him an amount of Rs. 30,00,000/- in cash. – Since the hand loan was given looking to the cordial relationship between the parties the said loan was interest free hand loan. – Held, First respondent has stated that he has no knowledge, how to access the email and also he does not possess the smartphone. – Be that as it may, it appears from the material on record that the trial Court will have to find out after appreciation of documents on record, whether the complaint filed by the first Respondent was within time or otherwise. – Prima facie it appears that notice sent on residential address of the applicant was received by the complainant i.e. by first Respondent on 15th February 2018 and complaint was filed on 14th March 2018. – Therefore, at the threshold it cannot be concluded that complaint was not filed within limitation. – Therefore, trial Court will have to find out upon appreciation of documents placed on record, whether the applicant had knowledge of accessing email, and as a matter of fact, whether he received the email sent by the applicant on 27th January 2018. – Another contention of the counsel for the applicant that, the first Respondent has not replied or produced on record single documents to show when and where the alleged transaction between the applicant and first respondent had taken place and which documents were executed with regard to said transaction, and what is the source of income of the first Respondent to pay such huge loan amount to the applicant. – In this respect it is only during trial the Trial Court will be able to appreciate the aforesaid contentions. – An another contention of the applicant that the statement of bank account of the applicant will show that the said cheque was part of the cheque book issued to the applicant, and there was change in the format of the cheque and now the applicant has been issued new cheque book by the Bank and, therefore the Respondent has misused old cheque given by the applicant many years ago and has cheated the applicant is concerned, it is for the trial Court to consider the above contention after appreciating the material placed on record. – Prima facie it appears that signature on the subject cheque is not denied by the present applicant. – In the light of the discussion in forgoing paragraphs this Court is of the opinion that no interference is called for in the order of issuance of process. – Application Rejected.
JUDGMENT :
S.S. Shinde, J.
This application takes an exception to the order passed by the 6th Judicial Magistrate First Class, Nashik (for short "said Court") on 09th May 2019 thereby issuing process against applicant for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the said Act").
2. The present applicant is an accused in the Summary Case No. 2373/2018 and first Respondent is original complainant before the said Court. It was stated in the complaint that, complainant is an agriculturist and resident of Kasabe Vani, Taluka Dindori, District Nashik. The accused and the complainant were known to each other and has had good acquaintances and were friends since long. It is alleged that, the Accused met with the complainant and represented that he was in need of money for his business. Accordingly, the accused requested the complainant to give him the hand loan of Rs. 30,00,000/- (in words Rs. Thirty Lakhs only) for the purpose of his various businesses. The accused assured the complainant that the said amount will be refunded when money will be available with him. Having a cordial relationship with the Accused, the complainant relying upon the said assurance of the Accused paid him an amount of Rs. 30,00,000/- in cash. Since the hand loan was given looking to the cordial relationship between the parties the said loan was interest free hand loan.
3. It was alleged that, in pursuance of the acccused's liability and/or legal dues payable to complainant, accused had issued and delivered to the complainant a cheque bearing No. 137572 dated 15.12.2017 drawn on Business Bank, Ltd., Mahatma Nagar, Nashik for a sum of Rs. 30,00,000/- with an assurance to honour the said cheque immediately upon the presentation thereof.
4. It was alleged that, the aforesaid cheque was deposited by the complainant for encashment in his bank namely Shree Mahesh Cooperative Bank Ltd., M.G. Road, Nashik Branch on 08.01.2018 which was returned dishonoured. The fact of the said dishonour of cheque was intiamated to the complainant under a memo dated 09.01.2018 issued by the said Bank. The said memo was delivered to the complainant on 09.01.2018. Therefore, the complainant left with no option but to issue a notice by Registered post, calling upon the accused to pay the aforesaid amount. The complainant in the said notice had warned the accused that in the event if the cheque amount is not paid to him, the complainant would be constrained to file a summary criminal case under Section 138 of the said Act.
5. It was alleged that, the said notice was sent to the accused on his residential address and a copy thereof was sent on his business place. The complainant avoided to receive the said notices on both the addresses. Hence the concerned postman intimated the accused to collect the said notices which were sent in the covers. Inspite of receipt of intimation about both these notices the accused failed to collect and receive the said notices from the concerned offices. In the circumstances both these notices were returned to the complainant. The accused avoided to collect and to receive the said notices, as he was aware of the contents of the said notices. It is pertinent to note that the said notices sent by the complainant under his own signature. The complainant had also written his name on the said covers as the sender. The cover of notices sent on the residential address of the accused was returned and delivered to the complainant on 15.02.2018. The cover of notices sent on the business address of the accused was returned and delivered to the complainant on 06.02.2018.
Despite having knowledge of the said notices, the Accused either failed to reply the said notices or/and neglected to make payment of the said cheque to the complainant. In the circumstances mentioned herein above the accused has not disputed his liabilit
