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BOMBAY HIGH COURT
A.R. Joshi, J.
Vishal Nagari Sahakari —Appellant
versus
Damodar Rajeram Thakre —Respondent
Criminal Appeal No. 76 of 2010
Decided on 14.9.2012
Counsel for the Parties:
For the Appellant:Shri S.R. Soni, Advocate.
For the Respondent:Shri N.R. Bargat, Advocate.
IMPORTANT POINT
Mere alleging a particular thing cannot be accepted as sufficient proof for accepting defence of respondent-accused.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—Very acceptance of signing on cheque is required to be taken in favour of complainant and defence raised by accused as to it was not for any legally enforceable liability but for standing as a guarantor to loan taken by his brother, was definitely on respondent-accused—Said liability has not been fulfilled much less proof as to respondent-accused then stood as guarantor to loan of his brother— When respondent-accused came forward with a specific defence, it is must for him to establish the same though on preponderance of probability—Mere alleging a particular thing cannot be accepted as sufficient proof for accepting defence of respondent-accused—Trial Court miserably failed to appreciate evidence and to hold that accused had proved that concerned cheque was not issued by him for any liability—Impugned judgment and order quashed—Respondent-accused convicted of offence punishable under Section 138 of Negotiable Instruments Act. (Paras 8 to 16)
A.R. Joshi, J.—Heard rival submissions at length on the earlier date and also today on this criminal appeal preferred by the appellant/original appeal complainant challenging the order of acquittal of the respondent in the matter of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act).
2. The impugned judgment and order dated 30/4/2009 was passed by the Judicial Magistrate, First Class (Special Court), Nagpur, thereby acquitting the respondent/accused of the offence punishable under Section 138 of the Act mainly holding that the accused proved that the concerned cheque (Exh.23) was not issued by him for any liability, and therefore, the offence punishable under Section 138 of the Act is not attracted.
3. In order to appreciate the rival submissions, the case of the complainant in nutshell can be mentioned as under:
The complainant is society registered under the Maharashtra Cooperative Societies Act, 1960 and engaged in the business of advancing loan on credit to its shareholders/members. The respondent-accused is shareholder of the complainant-society. He requested for loan facility for Rs.1,00,000/on 16/01/2003 and executed necessary documents and agreed to repay the loan amount by monthly installments. He failed to pay the installments and the amount of principle as well as interest were due and payable to the complainant-society. Towards part payment of the outstanding dues, the respondent-accused issued a cheque bearing No.10757 dated 09/11/2006 for Rs.1,61,918/drawn on Bank of Maharashtra, Jaripatka Branch, Nagpur. The said cheque was dishonoured due to reasons, “funds insufficient”. A cheque return memo dated 11/11/2006 was issued. Then, demand notice was issued to the respondent-accused by registered post with acknowledgment due on 05/12/2006 on the address known to the complainant-society. The respondent-accused was duly served with the said notice on 13/12/2006, but failed to comply and also did not reply the notice. Hence, the prosecution under Section 138 of the Negotiable Instruments Act.
4. The defence of the respondent-accused was that of total denial in as much as he had never taken any loan from the complainant-society and disputed the cheque given towards the repayment of any legally enforceable liability. According to him the cheque was signed by him but in blank and given to the society being the guarantor to the loan granted by the society to his brother-defence witness (D.W.) No.1.
5. During the trial, two prosecution witnesses were examined on behalf of the complainant-society. Then statement of the respondent-accused was recorded under Section 313 of the Code of Criminal Procedure. The respondent-accused did not enter into the witness box and did not give his defence, however, examined his brother as D.W.1 alleging that his brother had taken the loan from the concerned society and the respondent-accused was asked to give a cheque as guarantor to the said loan and said cheque given in blank though signed by the respondent-accused, was misused by the society for filing the complaint under Section 138 of the Act. According to the respondent-accused, the loan taken by his brother was repaid by his brother, however, the cheque allegedly given by the respondent-accused to the society was never returned to him and misused.
6. In the present appeal preferred by the complainant-society, it is to be ascertained whether the circumstances and the material before the trial Court warrant interference in the impugned judgment and order of acquittal and whether there are findings recorded by the trial Court which are perverse in nature and required to be set aside?
7. The defence of the respondent-accused is mainly in fourfold;
(1) The respondent accused gave blank cheque with his signature without filling any details even the name of the payee, date and amount.
(2) The Bank statement of the account of the respondent-accused produced on record at Exh. 29 is not proved, i
