IMPORTANT POINT
Dishonour of cheque – Law itself permits accused person to prove that there is no passing of a consideration from complainant to himself and cheque was not issued towards discharge of that consideration.

JUDGMENT

S.M. Modak, J.—This is the case, wherein both the parties have undertaken the responsibility of discharging the burden on themselves. The complainant examined himself and banker of the accused, whereas, the accused examined himself and one witness, who was present at the material time. In that sense of the matter, I have said that both have undertaken the responsibility. At the end of the trial, the accused succeeded in satisfying the Court to give a verdict in his favour. Resultantly, the accused was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “N.I. Act” for short).

02] So, this Court is required to decide, whether the trial Court was right in answering the issue of liability against the complainant. This happened in S.C.C. No.2837/2005. The Court of Judicial Magistrate First Class No.5, Nagpur gave verdict as said above on 19/08/2006. It is challenged at the instance of the complainant before this Court.

03] I get an opportunity to hear learned Advocate Shri S.H. Quazi for the appellant and learned Advocate Shri R.M. Patwardhan for the respondent-accused. Through their assistance, I have perused the record. There is no dispute about asking of hand-loan by the accused from the complainant. There is no dispute about the purpose of loan being purchase of plot. The dispute pertains to the amount of loan. According to the complainant, it was Rs.75,000/-, whereas according to the accused, it was only Rs.20,000/-.

04] The next area of dispute is on account of Hero Honda Splendor, two wheeler vehicle. There is no dispute about handing over it’s custody to the complainant. The dispute pertains to the mode in which the complainant was put in custody. According to the complainant, he purchased it from the accused for a total consideration of Rs.32,000/-. Rs.20,000/- was paid at the time of taking custody and Rs.12,000/- was paid on 11/12/2002 when writing was prepared. Whereas, according to the accused, the custody was given not by way of sale, but complainant took custody towards the security for repayment of the loan.

Defence of Accused

05] From reading the record, the defence of the accused in nutshell is as follows:

While taking loan of Rs.20,000/-, he handed over two blank cheques and two blank stamp papers duly signed by him to the complainant. They were given on 15/12/2002. The Hero Honda Splendor motorcycle was handed over towards security as the complainant was asking for return of money. There was no intention to sell it and that is why the complainant has not transferred it in his name. The accused indirectly wants to suggest that contents of the cheque in question and documents about sale of Splendor motorcycle were filled in by the complainant to suit his purpose.

06] As said above, the trial Court has concluded about the rebuttal of presumption by the accused and acquitted him. The said judgment is challenged on various grounds. They are as follows:

(a) Overlooking the provisions of the N.I. Act which authorizes the payee to complete the instrument.

(b) Admitting the purpose of loan and considering other sums raised by the accused for purchase of plot, it is but plausible to borrow Rs.75,000/- by the accused.

(c) The agreement about the vehicle is on stamp-paper of Rs.50/- and it falsifies the accused’ suggestion that he has signed the blank stamp papers of the value of Rs.20/- and Rs.100/-.

(d) Unreliability of evidence of witness Anil Bansiram Chavan, particularly in view of his relationship, his antecedent and answers given during cross-examination.

07] To buttress his submission, appellant’s Advocate relied upon the following judgments:

(i) K.N. Beena vs. Maniyappan and another- AIR 2001 SC 2895.

(ii) S. Ponnusamy @ S.P. Samy vs. K. Mani – 2016 (1) DCR 70.

(iii) Purushottam s/o Maniklal Gandhi vs. Manohar K. Deshmukh and another – 2007(1) Mh.L.J. 210.

08] On the other hand, learned Advocate Shri R.M. Patwardhan for the respondent