IMPORTANT POINT
Provisions of Section 138 N.I. Act, would not be attracted to case where bank obtained blank or post dated cheque before or while sanctioning or disbursing loan amount as security of loan.

P.R. Borkar, J.—This is an application for leave to file appeal against the order of acquittal, passed by the learned Judicial Magistrate, First Class, Court No. 1, Ahmednagar in S.T.C. No.960 of 2008, decided on 21.1.2009, whereby the respondent is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act.

2. Brief facts giving rise to this application may be stated as below:

Present application has filed private complaint alleging that the complainant is a cooperative society registered under the Maharashtra Cooperative Societies Act, 1960. It is doing Banking business. The respondent for .his business had taken loan of Rs. 2,00,000/- (Rupees two lakh only) on 18.10.2000 and for satisfaction of the loan, he executed promissory note, mortgage deed, guarantee deed, etc. The respondent has agreed to repay amount from time-to-time by instalments. Accordingly, cheque No.500276 of Rs. 87,209/- drawn on Ahmednagar Merchants Cooperative Bank Ltd., Branch-Dalmandai, Ahmednagar, was issued. The cheque was dated 24.1.2008. When the complainant/applicant presented the cheque, it was dishonoured on the ground of insufficiency of funds. Thereafter, on 11.2.2008 a notice was issued by the complainant/applicant, but inspite of the same, the amount was not paid by the respondent and therefore the complaint was filed.

3. The learned Magistrate after considering the evidence led by both sides; passed the order of acquittal acquitting the respondent of offence punishable under Section 138 of the Negotiable Instruments Act, mainly on three grounds. Firstly, it is held that as many as ten blank cheques were obtained by the applicant Bank while sanctioning/disbursing loan as security and one of them was used in the present case; secondly, there is bar of limitation; and thirdly, amounts paid by the respondent, in respect of which he has produced receipts in defence, were not reflected in the extract of account produced on record and as such it is not proved that the amount of Rs. 89,209/- was due on the date of the cheque. As against said decision of acquittal, the applicant/complainant wishes to file the appeal and therefore he filed this application under Section 378(4) of the Code of Criminal Procedure for leave to file appeal.

4. Heard Mr. Shri L.B. Pallod for the applicant and Adv. Mr. J.M. Murkute for the respondent.

5. The Trial Court in para 12 onwards has considered the evidence on record. The respondent/accused in his affidavit in lieu of examination in chief has stated that he had repaid the entire loan in the year 2005 and he possessed receipts thereof. He also stated that while granting loan, ten blank cheques signed by him were obtained. No cheque was issued by him of amount due towards loan. It is observed that in the cross-examination said evidence has remained unshaken and the suggestions put on behalf of the complainant were denied. The Court also came to a conclusion in para 13 that the evidence of the accused/respondent was reliable. It is proved that he had given 10 blank signed cheques to the complainant. In order to substantiate this, he has examined P.W.3 Ashok Jindam, who was officer of the Ahmednagar Merchants Cooperative Bank. Said witness has stated that cheque book containing cheque No.500276 was given to the accused respondent on 4.10.2000. He proved document Exh.46. He also produced account extract at Exh. 47. This evidence was also unshaken in cross-examination. The witness was found reliable witness by the Trial Court. The document at Exh. 46 shows that the cheque book bearing cheque in question was issued to the respondent/accused on 4.10.2000. It was cheque book contained cheque Nos. 500276 to 500300. Thereafter on 13.11.2001 another cheque book was issued, On 22.2.2005 third cheque book was issued to the respondent. The account extract at Exh. 47 clearly shows that the cheques bearing Nos. 5002 88 to 500299 were used till 24.9.2001 and thereafter cheques issued in the second