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BOMBAY HIGH COURT
Abhay M. Thipsay, J.
Meera S. Chiplunkar —Appellant
versus
Ashalata Rawji Kondkar and Anr. —Respondents
Criminal Appeal No.888 of 2005
Decided on 2.7.2015
Counsel for the Parties:
For the Appellant:Mr. Sagar Kasar, Advocate
For the Respondents: Mrs. S.V.Gajare, APP
IMPORTANT POINT
Principle that a criminal charge must be proved beyond reasonable doubt, applies to cases of offences punishable under Section 138 of Negotiable Instruments Act also.
Headnote:(A) Negotiable Instruments Act, 1881—Section 138 read with Sections 118 and 139—Dishonour of cheque—Principle that a criminal charge must be proved beyond reasonable doubt, applies to cases of offences punishable under Section 138 of Negotiable Instruments Act also—Presumptions laid down in Sections 118 and 139 of Act do not do away with necessity of proving accusation beyond reasonable doubt—Principle that prosecution must succeed on its own merits and not on the basis that defence version is false, has also not undergone any change—False defence can only add strength to prosecution case but by itself will not amount to proof of accusation being true—Where complainant’s case suffers from serious weaknesses, it cannot be believed merely because accused has taken a false defence on a particular point. (Para 21)
(B) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Appeal against acquittal—Complaint does not give any details about payment of loan to accused which was as per complainant, advanced not by her but by her husband—Only total amount of loan has been mentioned without specifying whether it was paid at one time or on different dates and what were different amounts paid on different occasions if it was not paid at one time—Fact that husband of complainant had handed over a blank signed cheque to accused, indicates that their friendship was considerable and accused was fully trusted by husband of complainant—Doubt felt by Magistrate about truth of complainant’s case is proper, legal and does arise out of evidence adduced before him—Appeal dismissed. (Paras 10, 12, 22 to 26)
Result: Appeal dismissed.
Abhay M. Thipsay, J.—The appellant is the original complainant. She had prosecuted the respondent no.1 herein on the allegation that the respondent no.1 had committed an offence punishable under section 138 of the Negotiable Instruments Act. The Metropolitan Magistrate’s 7th Court, Dadar, after holding a trial, found the respondent no.1 not guilty, and passed an order of acquittal. Being aggrieved thereby, the appellant, after obtaining special leave of this Court, has filed the present Appeal.
2. When the Appeal was called out for final hearing, none appeared for the respondent no.1. Under the circumstances, the Appeal is being decided after going through the record, and after hearing the learned counsel for the appellant.
3. For the sake of clarity, the appellant is hereinafter referred to as ‘the complainant’ and the ‘respondent no.1’ as ‘the accused’.
4. I have heard Mr.Sagar Kasar, the learned counsel for the appellant. He has taken me through the evidence adduced during the trial, and the impugned judgment.
5 The case of the complainant as made out against the accused, as per the complaint, was that the husband of the complainant had advanced a friendly loan of Rs.5,50,000/to the accused and her sister Smt.Shalini (who was mentioned as accused no.2 in the complaint), and that the accused had agreed to repay the loan on 1st August 2002. That, towards the repayment of the said loan, the accused issued a cheque in the sum of Rs.5,50,000/which was dishonored when presented for payment with the remark ‘funds insufficient’. That since even after sending a demand notice, the amount of the cheque was not paid, the complaint came to be filed.
6. During the trial, the complainant examined herself and also her husband. The accused examined herself as a witness in her defence.
7. The Magistrate did not believe the evidence of the complainant and her husband, inasmuch he doubted whether an amount of Rs.5,50,000/ was indeed due and payable by the accused to the complainant or to her husband. He did not accept the theory of a friendly loan having been given by the complainant’s husband to the accused, and the cheque having been issued in repayment thereof. Undoubtedly, the Magistrate also found some other shortcomings in the case of the complainant such as absence of proof of the service of a valid demand notice etc., but the main reason for his coming to the conclusion that the accusation against the accused had not been proved, seems to be the doubt felt by him about the transaction in question.
8. I have taken into consideration the contentions advanced by the learned counsel for the appellant, carefully, but inspite of that, upon considering the evidence adduced before the Magistrate, and upon going through the judgment delivered by him, I do not find anything improper or illegal in the view taken by the Magistrate.
9. The case of the complainant suffered from a number of weaknesses. In the first place, whether the amount of Rs.5,50,000/ was paid by the husband of the complainant to the accused, is itself not clear, inasmuch as the complaint speaks of two accused i.e. the present accused, and as aforesaid, her sister Shalini, against whom process was not issued. The complaint proceeds on the basis that a friendly loan was given to both of them in repayment whereof the accused had issued the cheque in question. However, when the process was not issued, and when only the accused was being prosecuted, the complainant appears to have modified this version by saying that the loan had been given to the accused.
10. That by itself would not be very material or conclusive, but the fact remains that the complaint does not give any details about the payment of the loan to the accused which was, as per the complainant, advanced not by her, but by her husband. Only the total amount of loan has been mentioned, without specifying whether it was paid at one time, or on different dates, and what were the different amounts paid on d
