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2012(1) Bankmann 283 (Bom.)
BOMBAY HIGH COURT
S.S. Shinde, J.
Ramesh Bhimraj Panhale —Appellant
versus
Kishor S. Chobe —Respondent
Criminal Appeal No. 474 of 2000
Decided on 21.2.2011
Counsel for the Parties:
For the Appellant:Shri S. K. Shinde, Advocate h/f Shri V. H. Dighe, Advocate.
For the Respondent No.1:Shri S. T. Shelke, Advocate.
For the Respondent No.1: Shri V. D. Rakh, A.P.P.
IMPORTANT POINT
If possible view is taken by Trial Court, merely another view is possible cannot be a ground to reverse order of acquittal.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—Dishonour of cheque issued towards repayment of hand loan—Hand loan was given on 8.2.1991 and two cheques were issued by the respondent on 20.2.1996—Complainant has not stated before Court that .hand loan of Rs. 60,000 was given for five years—If at all complainant wanted to recover legally enforceable debt from respondent, he should have initiated proceedings within three years from date of advancement of loan—There is admission by respondent that respondent had given blank cheque to appellant—Respondent has rebutted presumption under Section 139 by taking possible defence and evidence of four witnesses strengthened the defence of respondent—Trial Court has taken correct view in matter— Impugned judgment and order confirmed. (Paras 8 and 9)
S.S. Shinde, J.—Heard learned counsel appearing for the appellant and learned counsel appearing for the respondent at length. Present criminal appeal is filed by the original complainant taking exception to the judgment and order passed by the Judicial Magistrate First Class, Rahuri in S.T.C. No. 254/1996 dated 4th September, 1999, thereby acquitting the respondent/original accused.
2. The facts of the case can be stated as under:
The complainant alleged in his complaint that the accused Kishor S. Chobe was carrying construction and contractor business and due to one, Anil Sarvadkar accused was conversant and acquainted with the accused. Thus, accused used to take hand loan amounts from the complainant and repay it. It is alleged that the accused came to the complainant on 8.2.1991 and demanded hand loan of Rs.60,000 for the period of five years. So the complainant withdrawn his balance amount from the bank and paid Rs.60,000 in cash to the accused.
3. It is further case of the complainant that, after period of five years, the complainant demanded amount of Rs.60,000 from the accused. Accused was not having sufficient cash with him so he issued cheque of Rs.60,000 drawn upon the Union Bank of India, Branch Gholewadi, Tq. Sangamner on 20.2.1996. The complainant presented and deposited that cheque for payment. But concerned bank dishonoured the same with passing memo. Thus, for funds insufficient the cheque returned on 10.4.1996. Then the complainant informed to the accused about the dishonour of the cheque and non-payment of it. The accused refused to pay the cheque amount to the complainant. The complainant issued him notice on 18.4.1996, and demanded amount, costs of the dishonour cheque as well as notice charges. So it is alleged that, the cheque issued by the accused to the complainant for payment of hand loan amount was dishonoured and so the accused was also issued with the notice. But he failed to pay the amount. Hence the accused has committed offence punishable under Section 420 of Indian Penal Code and under Section 138 of the Negotiable Instruments Act.
4. It appears from the record that the process under Section 138 came to be issued against the accused on 5.7.1996. In view of the process notice cum-summons issued to the accused who appeared before the Court. The particulars of the offence of issuing cheque of Rs.60,000 to the complainant for payment of hand loan on 20.2.1996 and dishonouring the same by the concerned payee bank and also issuing notice to him by the complainant and failed to pay the cheque payment are read over and explained to the accused in the Marathi language. The accused pleaded not guilty to it and claimed to be tried. The defence of the accused is of total denials on the submissions that he has not committed any offence and he has already paid Rs.35,000 plus Rs.20,000 total Rs.55,000 before 20.11.1993. The complainant compelled him to hand over blank cheques and so he only signed this cheque and handed over to the complainant and who afterwards filled up blank columns of the cheque written the amount on it and so whatever the amount written is not due towards him. In order to harass the accused complainant has filed this false case against him.
5. In order to prove the allegations against the accused, the complainant Ramesh Bhimraj Panhale deposed at Exhibit 30. So also produced the dishonoured cheque, office copy of notice as well as examined the witness No.2 Lalitkumar Fattelal Chaddha branch manager cum head cashier Ghulewadi branch Sangamner. The accused has examined defence witness No.15 Gopinath Dashrath Dhonde servant of Union Bank of India, Pravaranagar at Exhibit 65 and who produced saving account extract of Mr. Ramesh Bhimraj Panhale at Exhibit 66. PW2 is Anaji Rambhau Thorat clerk of Merchant Bank Sangamner deposed at Exhibit 77, who also produced verified copy of cheque dated 27.7.1995 and account statement of Bhimsashankar Ravba Chakor. DW3 is Manohar Dhondiba Sarva
