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2018 Supreme(Bom) 2747
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Arun D. Upadhye, J.
Smt. Kamla Pyarelal Gupta - Appellant
Versus
Deepak - Respondent
Criminal Appeal No. 624 of 2005
Decided On : 25-04-2018
A. V. Bhide, Advocate, for the Appellant; P. R. Agrawal, Advocate, for the Respondent
Headnote:
Negotiable Instruments Act - section 138 - cross-examination – Dishonor of Cheque - Accused was in need of money for purchasing field and therefore, requested complainant for payment of amount - Complainant having faith on him, gave amount - Complainant further contended that the accused issued cheque of. Bank - Complainant deposited said cheque in Bank - But same was returned back with a memo showing that there is no sufficient fund in the account of accused - Complainant, therefore, issued notice to the accused by Registered Post A.D. The notice was received by the accused - However, he did not pay the amount - Complainant, therefore, filed a complaint before Judicial Magistrate First Class - Held, Court has held that no doubt, there is presumption that cheque is issued in discharge of such legally enforceable liability and debts - Facts and circumstances appearing in evidence of prosecution, in this case, go to show that defence taken by the respondent that the cheque was for some other transaction is probable and therefore, one must say that presumption has stood rebutted. In the case at hand, the accused has shown by adducing evidence that loan was taken from the husband of complainant and the same was repaid and therefore, the presumption stands rebutted - Evidence on record and after considering the submission put forth on behalf of the parties, I am of the view that the learned Magistrate has rightly appreciated the evidence on record and no interference of this Court is called for. The learned counsel for the accused has rightly pointed out that the Appellate Court has very little scope to interfere with the finding of the trial Court, in acquittal matter - Appeal is dismissed.
JUDGMENT
Arun D. Upadhye, J. - Being aggrieved by the Judgment and order dated 28.06.2005 passed by the JMFC Court No. 1, Achalpur acquitting the accused of the offence punishable under section 138 of the Negotiable Instruments Act in Summary Criminal
Complaint Case No. 1265 of 2003, the appellant - original complainant has preferred this appeal. The respondent is original accused. (Hereinafter appellant is referred as "complainant" and respondent is referred as "accused").
2. The brief facts of the case are as under :
The complainant is a permanent resident of Paratwada and having good relations with the accused.
3. The accused was in need of money for purchasing the field and therefore, requested the complainant for payment of amount of Rs. 40,000/-. The complainant having faith on him, gave amount of Rs. 40,000/- on 30.11.2002.
4. The complainant further contended that the accused issued cheque of Khamgaon Urban Cooperative Ltd. Bank, Branch Achalpur bearing Ch. No. 294217 of Rs. 40,000/-on 02.05.2003. The complainant deposited the said cheque in Punjab National Bank on 05.05.2003. but the same was returned back on 06.05.2003 with a memo showing that there is no sufficient fund in the account of accused. The complainant, therefore, issued notice to the accused on 17.05.2003 by Registered Post A.D. The notice was received by the accused on 20.05.2003. However, he did not pay the amount on or before 05.06.2003. The complainant, therefore, filed a complaint before the Judicial Magistrate First Class.
5. After verification of the complaint, process was issued under section 138 of the Negotiable Instruments Act. The accused appeared in the proceeding. The particulars of the offence were explained to him vide Exh.14. The accused pleaded not guilty and claimed to be tried.
6. After recording the evidence in the matter and after hearing both the sides, the learned Magistrate has acquitted the accused of the offence punishable under section 138 of the Negotiable Instruments Act by its order dated 28.06.2005. The said order is assailed by the complainant by way of appeal amongst the other grounds mentioned in the Appeal Memo.
7. I have heard both the learned counsel for the parties at length.
8. Shri Bhide, learned counsel for the complainant has submitted that the accused had issued a cheque dated 02.05.2003 of Rs. 40,000/- towards repayment of loan given by the complainant. The cheque was deposited in the Punjab National Bank, Branch Achalpur. The cheque was dishonoured on 05/05/2003 and memo was given on 06.05.2003. The complainant has issued notice to the accused by Registered Post. The same notice was received by the accused. However, he has not paid the amount. Therefore, complaint was filed before the J.M.F.C. Court, Achalpur. He further submitted that the complainant has adduced oral evidence and proved the documents. The complainant has also examined her husband in support of her case. The accused has examined one defence witness in support of his defence. He further submitted that nothing is brought in the cross-examination of the complainant to disbelieve her. The accused is an Advocate by profession. He is aware of signing the cheque and he knows the law. '' The learned Magistrate has not considered the evidence on record and wrongly acquitted the accused. The appeal, therefore, be allowed.
9. Shri P.R. Agrawal, learned counsel for the accused has submitted that the evidence adduced by the complainant is contrary to her complaint. The affidavit of examination-inchief is the copy of complaint. The complainant has not shown the source of her income. The defence of the accused is probable one. The complainant has admitted that the cheque was given by the accused on the same date when loan was given to him. There was no transaction between the complainant and the accused. On the contrary, the transaction was between the husband of the complainant and the accused. The accused has adduced the evidence showing the amount of Rs. 1
