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BOMBAY HIGH COURT
Swapna Joshi, J.
Washim Urban Cooperative Bank Limited Washim, Branch Washim Tahsil and
District: Washim - Appellant
Versus
State of Maharashtra and another – Respondents
Criminal Appeal No. 430 of 2008
Decided on 21.6.2017
Counsel for the Parties:
For the Appellant:Ms. A. Kshirsagar, Advocate for Mr. A. S. Mardikar, Senior Advocate.
For the Appellant No. 1: Mr. V.P. Gangane, Additional Public Prosecutor.
For the Respondent No. 2:- None
IMPORTANT POINT
Merely submitting that accused had given cheque for payment of outstanding loan and it is dishonoured, is not sufficient to prove guilt of accused under provisions of Section 138 of N.I. Act.
Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 142(b)—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal appeal—Alleged delay in lodging of complaint—According to complainant, delay in lodging of complaint was caused as accused had assured Bank to pay amount—Said reason has not been elaborated in evidence of complainant—Said reason is not a plausible explanation as complainant had already made up his mind to lodge complaint against accused—Cause for delay in lodging complaint remained unexplained which goes to root of case—Besides, complainant has not proved that cheque was issued from a particular cheque book—Said fact would have proved as to when cheque was issued, whether at the time of signing loan papers or thereafter—Complainant Bank has failed to adduce any evidence in that regard—Similarly, it was duty of complainant to prove as to who had written contents in cheque and date on it so also amount—Handwriting of contents in cheque and of signature on cheque are totally different—Merely submitting that accused had given cheque for payment of outstanding loan and it is dishonoured, is not sufficient to prove guilt of accused under provisions of Section 138 of N.I. Act—No case is made out against accused for offence punishable under Section 138 of N.I. Act—Accused is entitled for acquittal—Appeal dismissed. (Paras 5, 6, 7, 11 and 12)
(B) Criminal Procedure Code, 1973—Section 372—Appeal against acquittal—In exercise of its appellate jurisdiction particularly in appeal against acquittal, it is not open to High Court to substitute its own view with view taken by lower court unless view taken by lower Court is illegal, perverse or against principle of law. (Para 12)
Result: Appeal dismissed.
Swapna Joshi, J. —This Appeal has been preferred by the complainant against the judgment and order dated 15.11.2005 thereby acquitting the accused/ respondent no.2 in Summary Criminal Case No. 873/2005 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act”).
2. The case of the complainant, in brief, is that the complainant Bank granted cash credit facility of Rs.10,000/- to the respondent no.2/accused Kisan, on 09.04.2001. The accused executed necessary documents in favour of the Bank. There was an outstanding amount of Rs.14,380/-. An award of Rs. 14,380/- was passed by the Assistant Registrar, Cooperative Societies, with interest thereon. On 01.03.2005, the amount due with interest was to the tune of Rs. 20,004/-. On 23.02.2005 a cheque was issued by the accused in respect of the loan outstanding against him for the amount of Rs.20,004/- bearing Cheque No.626151 thereby admitting his liability. The said cheque was issued by the accused towards outstanding amount and for crediting the same in the account of his father. The said cheque was presented in the Bank. However on 12.03.2005, it was dishonoured for want of sufficient funds in the account of the accused. On 17.03.2005, the complainant Bank issued notice to the accused for payment of the cheque amount, which was received by the accused on 21.03.2005. As the accused failed to pay the said amount, the complaint was lodged by the complainant on 09.05.2005. In fact, he should have filed it on or before 07.05.2005 i.e, within fifteen days from the receipt of notice by the accused. However, the delay of two days was condoned by the learned Magistrate on considering the evidence before the Court and acquitted the accused.
3. Heard Ms. Kshirsagar, learned counsel for the complainant. She vehemently argued that the accused had issued a cheque on 23.02.2005 for the payment of loan outstanding against him, which was dishonoured, for want of sufficient funds. According to her, since the notice was served upon the accused on 21.03.2005, the complainant has established the procedural requirements of Section 138 of the N.I. Act. It is submitted that the impugned judgment is illegal and perverse, in as much as the learned Magistrate has not considered the evidence on record in its right perspective.
4. As against this, Shri Gangane, learned Additional Public Prosecutor contended that the learned Magistrate has rightly considered the evidence on record. According to learned A.P.P. the accused had issued the said cheque by way of security of transaction of loan. The learned A.P.P. pointed out that there is an unexplained delay in lodging of the complaint and the accused had given an undertaking after lodging of the complaint. Hence, it is of no assistance to the complainant for the purpose of extending the limitation. So also, the cheque issued by the accused was deposited in the account of his father which indicates that the entire transaction was with the father of the accused and not with him. Therefore, the case does not fall within the ambit of Section 138 of the N.I. Act.
5. I have considered the rival contentions of both the sides and gone through the record carefully. As far as the contention of the learned A.P.P. that there is an unexplained delay in lodging of the complaint, it is apparent that the said delay is not satisfactorily explained. The learned Magistrate has expressed that the delay is condoned, as per the order passed on Exh.1. However the order depicts that the delay in lodging the complaint was condoned, subject to proving the cause, at the time of trial. According to the complainant, the delay in lodging of the complaint was caused as the accused had assured the Bank to pay the amount. The said reason has not been elaborated in the evidence of the complainant. The said reason is not a plausible explanation as the complainant had already made up his mind to lodge the complaint against the
