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2008(2) Bankmann 596 (Bom.)
BOMBAY HIGH COURT
Joshi A.H., J.
Hinganghat Nagri Sahakari Path
Sanstha Maryadit —Appellant
versus
Gulab Krushnaji
Pimpalshende —Respondent
Criminal Appeal No. 350 of 2008
Decided on 1.7.2008
Counsel for the Parties:
For the Appellant:Apurv De, Advocate.
For the Respondent:H.D. Dangre, Advocate.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Appeal against acquittal—Proposition that loan given by Society to a non-member was illegality and such amount was not recoverable was untenable as drawn by trial court—Complainant did not get a fair and reasonable opportunity on that aspect—Acquittal deserved to be set-aside and matter remanded for trial a fresh. (Para 5 to 7)
Result: Appeal allowed accordingly.
Joshi A.H., J. —Heard learned Advocates for both the sides.
2. Appeal is admitted and is called out for final hearing in the light of order passed by this Court on 27th June, 2008 recording that case would be heard finally for considering remand.
3. Appeal proceeds on admitted facts, namely:
(a) There is a relationship of creditor and debtor between complainant and accused.
(b) Debt is within limitation.
(c) Cheque was issued by the accused towards repayment of dues.
(d) Cheque has been dishonoured and notice under Section 138 of the Negotiable Instruments Act is served and complaint is filed within limitation.
(e) Notice was not replied by the accused.
(f) Defence and controversy as to whether accused is not a member or nominal member of the complainant was raised for the first time in the cross-examination and then in oral arguments.
(g) The complainant had no opportunity to know the defence so as to prepare to meet it.
4. It is seen from the judgment that all findings, except on the points referred to in points (f) and (g) of foregoing para No. 3, are in favour of the complainant.
5. It is, thus, clear that the complainant has been taken by surprise as to the point on which the case was being defended by the accused in absence of reply to the notice under Section 138 of the Negotiable Instruments Act.
6. Moreover, a broader proposition that the loan given by a society to a non-member is an illegality and such amount would not be recoverable in law, is an inference drawn by the trial Court without any support of mandatory provision to that effect.
7. Even to this aspect, the complainant did not get a fair and reasonable opportunity. On this ground alone, this appeal is allowed and impugned judgment and order is set aside, and case is remanded to the trial Court for hearing and disposal according to law. Upon remand, the complainant would be entitled to file additional documents, if any, lead further examination-in-chief, and additional evidence, if any, if it desires.
Appeal allowed accordingly.
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