IMPORTANT POINT
Court must be satisfied on the basis of evidence adduced that defence is reasonably probable.

JUDGMENT

Rohit B. Deo, J.—The appellant, who is the original complainant in Summary Criminal Case 915/2004 instituted under Section 138 of the Negotiable Instruments Act, 1881 (“Act” for short), is challenging the judgment and order dated 10.4.2006 passed by the learned Judicial Magistrate First Class, Buldana, by and under which the respondent/accused is acquitted offence punishable under Section 138 of the Act.

2. Heard Shri R.N. Ghuge, learned Counsel for the appellant. Since there was no appearance on behalf of the respondent-accused, at the request of the Court the learned Additional Public Prosecutor Shri H.R. Dhumale has fairly and ably assisted the Court.

3. The gist of the complaint is that the accused requested the complainant to extend hand loan of Rs.80,000/- in May 2003 since the accused was in financial difficulty. In view of the friendly relationship, the complainant extended hand loan of Rs.80,000/- which the accused agreed to refund as and when demanded.

4. Towards refund of the loan the accused issued cheque dated 25.11.2003 bearing 071551 for Rs.30,000/, cheque dated 28.11.2003 bearing cheque 071554 for Rs.9,500/, cheque dated 25.12.2003 bearing 071552 for Rs.20,000/and cheque dated 25.1.2004 bearing 071553 for Rs.20,000/, all drawn on Bhandara Rural Bank, Sakoli Branch. The cheques were, however, handed over to the complainant at Buldana on 25.1.2004.

5. The four cheques were duly presented by the complainant for encashment, to the Akola District Central Cooperative Bank Limited. The four cheques were dishonoured on the ground of insufficient funds in the account of the accused. The complainant issued statutory notice dated 18.3.2004, the reply was received on 24.3.2004, however, the accused did not remit the amount covered by four cheques and hence, the complaint.

6. In the verification statement, the date of the return of memo is mentioned as 10.3.2004.

7. The complainant examined himself as C.W.1. The examination-in-chief is in consonance with the complaint.

It is brought on record that the notice does not state that Rs.80,000/was given as hand loan nor is the date on which the hand loan was given, disclosed in the notice. It is further not disclosed that four cheques of different amount were given by the accused. The notice (Exhibit 44) does not bear the name or signature of the Advocate. The suggestion that the complainant signed statutory notice (Exhibit 44) to create record, is denied. The complainant could not assign any reason why the accused issued cheques for Rs.79,500/as against the hand loan of Rs.80,000/. The suggestion that the accused had given blank cheques and that the contents were filled in by the complainant, is denied. The suggestion that the cheques were not issued towards payment of legally enforceable debt, is denied. It is suggested to C.W.1 that since there was drought and the complainant was in need of digging the well, the accused gave the four cheques as donation, which suggestion is denied.

8. The accused examined himself and deposed that the complainant approached him in the year 2003 and asked for donation to dig the well in the village in view of the drought. The accused has deposed that he handed over blank cheques without the date, amount or name and cautioned the complainant that a written intimation be given to the accused before filling in the amount and depositing the cheque, which written intimation was not given. The receipt of the statutory notice is denied.

In the cross-examination, it is extracted that the annual income of the accused is Rs.25,000/. The accused, however, denied the suggestion that since he needed money, the complainant extended hand loan.

9. In the statement under Section 313 of the Criminal Procedure Code, the accused stated, in response to question 9, that it was the complainant who demanded hand loan and he issued the cheques which were blank. However, the accused did not dispute the signature on the cheques. The learned Magistrate was conscio