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2010(1) Bankmann 158
(Bombay High Court Goa Bench)
Before :
Hon’ble N.A. Britto, J.
VPK Urban Co-Operative Credit Society Ltd. —Appellant
versus
Santosh Datta Pednekar and another — Respondent
Crl. Appeal No. 68 of 2009, decided on 16-09-2009
Mr. D. Pangam, for the appellant.
Mr. K. Kerkar, for the respondent No. 1.
IMPORTANT POINT
Presumptions available cannot be rebutted by bare suggestion to complainant’s witness which were denied on behalf of complainant
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonor of Cheque—Appeal against acquittal—Respondent is member of complainant Co-operative Society—Cheque issued by respondent towards repayment of loan returned unpaid—Respondent taking plea that cheque was issued as security—A bare suggestion that a cheque is given as security cannot be accepted to say that indeed it was given as security without any further explanation as to how that security was to operate—Accused having given subject cheque as a post dated cheque, complainant was entitled to, after date shown thereon to encash cheque and credit proceeds to loan account of the accused—Accused at no time disputed giving of said cheque—A duly completed cheque having been issued by accused in favour of complainant, complainant was entitled to all presumptions in his favour that cheque was given in discharge of liability of accused towards complainant—Presumptions available cannot be rebutted by bare suggestion to complainant’s witness which were denied on behalf of complainant—It was entirely for complainant to decide as to who should represent them in course of trial—Complainant had proved its case against accused under Section 138—Accused sentenced to undergo fifteen days R.I. alongwith compensation of Rs. 60,000/- with default stipulation. (Paras 13, 14, 16, 20 and 21)
(2008) 7 SCC 137—Distinguished.
2007(1) Goa LR 1591; 2009(1) BCR 306—Referred to.
Result : Accused convicted and sentence.
N.A. Britto,J.-This is a compl-ainant’s appeal and is directed against Judgment dated 24.11.08 of the learned JMFC acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881.
2. The complainant is a registered Co-operative Society governed by the Maharashtra Co-operative Societies, 1960, as applicable to the State of Goa and is in the business of accepting deposits and advancing loans. The accused is one of the members of the complainant.
3. The complainant filed the complaint on the allegation that the accused who was one of the members/ customers of the complainant was advanced a loan of Rs. 2,50,000/- which was payable with interest in installments under the terms and conditions stipulated in the agreement. The complainant stated that accused committed defaults in payment of the installments, inspite of repeated requests, and towards part payment of his liability the accused had in the past issued certain post dated cheques with request to present the same as and when they were due and one of such cheques was a cheque bearing No. 771240 dated 31.3.2007 for Rs. 30,000/ - drawn on HDFC Bank Limited, Panaji, in favour of the complainant towards part payment of the said installments and when the complainant presented the said cheque for realization the same was returned unpaid on 5.4.2007 as the account was closed whereupon the complainant sent a legal notice dated 18.4.2007 calling upon the accused to pay the amount due on the said cheque within fifteen days which the accused received on 19.4.2007 but the accused failed and neglected to pay the amount due and as such the complainant was filed against the accused.
4. The complaint was filed by one Ajay A. Kunkolkar, the Account Officer of Mardol Branch of the complainant and it was filed pursuant to a resolution of the complainant dated 16.9.2006 and a letter of authority given by the General Manager of the complainant dated 7.10.2006. However, in the course of the trial who was examined was one Ratna Shripad S. Amonkar pursuant to another resolution of the complainant dated 10.6.2007 and another letter of authority issued in her favour by the General Manager of the complainant.
5. On the basis of the said resolution as well as authority letter the said Ratna Shripad S. Amonkar filed her affidavit in evidence on 14.11.2007 and reproduced the facts stated in the complaint and produced the said resolution as well as the letter of authority dated 10.6.2007 and 11.7.2007, respectively, alongwith the other documents including the cheque, the cheque return memo, etc.
6. The case of the accused was that the cheque was issued as security. The accused initially stated that he would examine himself but later did not examine himself. The complainant’s witness, the said Ratna Amonkar had also produced the loan agreement entered into between the complainant and the accused by which a sum of Rs. 2,50,000/- was advanced to the accused repayable on or before 14.9.2006 in 60 installments of Rs. 7,000/- per month, the first installment being repayable on or before 14.10.2001 with interest at the rate of 19% and in case there was a default, the accused was liable to pay the whole of outstanding amount together with interest due thereon in terms of the demand pro-note dated 14.9.2001.
In the course of cross-examination it was suggested to the complainant’s witness that the entire amount was recovered by the complainant by cheque dated 25.9.2005, a suggestion which she denied. It was also suggested to her that a false complaint was filed which again she denied. It was also suggested to her that she had no authority to depose on behalf on the complainant which suggestion too, she denied. The accused also suggested that the loan was not disbursed by the complainant to the accused which suggestion she also denied. As already stated, the accused did not enter in the witness box.
7. The learned Magistrate relied upon a decision of this Court in the case of Mrs. Alka Torask
