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BOMBAY HIGH COURT
Abhay M. Thipsay, J.
Shri Pandurang Ramchandra Ghorpade —Appellant
versus
Vijay Gopala Lohar & Anr. —Respondents
Crl. Appeal Nos.823, 824 of 2009
Decided on 28.4.2015
Counsel for the Parties:
For the Appellant:Mr. Dilip Bodake a/w. Mr.Sharad Bhosale, Advocate
For the Respondent No.1:Mr.H.Noronha, Advocate
For the Respondents/State: Mrs.S.V.Gajare, APP
IMPORTANT POINT
No particular form of notice prescribed under clause (b) of proviso to S. 138 of NI Act.
Headnote:Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 378 (4) — Indian Penal Code, 1860 — Section 420 — Acquittal — Two notices identical except that there difference in number of cheque — Fact of having issued notices and/or of accused having received same on given date not in dispute — View of Magistrate was that notices not valid — HELD — Not possible to hold that there any defect in notices or in any of them —So as to hold that there had been no compliance with clause (b) of proviso to S. 138 of NIActbefore prosecuting accused — Reasoning of Magistrate in that regard cannot be accepted. (Paras 10 & 20)
(ii) Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 378 (4) — Indian Penal Code, 1860 — Section 420 — Acquittal — Complainant could have done better by not referring to ‘loan amount’ at all —In concluding part of any of two notices — And that complainant should have mentioned only of cheque amount in each of two notices — HELD — This lack of precision on part of complainant cannot result in holding notices to be invalid in either of cases —So as to treat that there had no demand for payment of amount of cheque in either of these cases. (Para 23)
Result: Appeals succeed.
Abhay M. Thipsay, J.—These two appeals can be conveniently disposed of by this common Judgment, as the parties are the same, the facts are common, and the points needing determination are also the same.
2. The appellant is the original complainant. He had, based on the dishonour of two cheques issued in his favour by the respondent No.1 herein, filed two different complaints, alleging the commission of two distinct offences, both punishable under Section 138 of the Negotiable Instruments Act (N.I.Act hereinafter) by the respondent No.1. After holding two different trials in respect of the said two cheques, the learned Magistrate found the respondent no.1 not guilty and passed an order of acquittal in both the cases. The appellant is aggrieved by the said orders of acquittal. He has, therefore, after obtaining special leave of this court, as contemplated under Section 378(4) of the Code of Criminal Procedure (Code hereinafter) filed the present two appeals, challenging the said orders of acquittal.
3. I have heard Mr.Dilip Bodake, the learned counsel for the appellant. I have heard Mr.H.Noronha, the learned counsel for respondent No.1. I have heard Mrs.S.V.Gajare, the learned APP for the State. I have carefully gone through the impugned judgments.
4. For the sake of convenience and clarity, the appellant shall hereinafter be referred to as ‘the complainant’ and respondent No.1 as ‘the accused’.
5. It is not necessary to refer to the facts of the two cases separately, as both the cases arose out of one and the same transaction. The case of the complainant, as put forth before the trial Court, was that, in the month of June 2001, the accused had requested to the complainant to give him a hand loan of Rs.50,000 to meet his family needs. That, since the complainant had very close and intimate relations with the accused, he immediately advanced an amount of Rs.50,000/in cash, as and by way of ‘hand loan’ to the accused. The accused had promised to repay the said amount within six months. However, the accused did not pay the amount as promised. The complainant demanded the amounts on a number of occasions, but the accused always avoided to repay the same. Ultimately, as the complainant kept on persistently demanding the repayment of the loan amount, the accused, in the month of January 2004, gave two postdated cheques to the accused, each in the sum of Rs.25,000. Both the cheques were presented for payment, but they were dishonoured with a remark, that there was “insufficient balance” in the drawer’s account. That, the complainant thereafter, on 4th March 204, sent two separate notices to the accused by registered post, demanding the payment of the amount in question. Both these notices were received by the accused on 11th March 204, but in spite of having received the notices, the accused did not repay the amounts in question, and therefore, the complaints were lodged. Since there were two cheques, the complainant chose to lodge two different complaints.
6. The complaints had been lodged alleging commission of offences punishable under Section 420 of Indian Penal Code (IPC) and Section 138 of N.I.Act. The process, however, came to be issued only in respect of an offence punishable under Section 138 of the N.I.Act. As aforesaid, the accused was acquitted in both the cases by two separate but absolutely identical judgments. There is no change in the facts of the case, except that they relate to two different cheques – one bearing no.924620 and the other bearing 924621.
7. During the trial, the complainant examined himself as a witness. He also examined one more witness, i.e. a bank officer Jagannath Adke. A number of documents were placed on record and tendered in evidence by the complainant during the trial.
8. The learned Magistrate framed four points for determination. Those points, together with the findings recorded by the learned Magistrate, are reproduced below :
Points Findings
1. Does complainant prove
that accused issu
