2022:BHC-AS:15568 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 268 OF 2011 Dilip Virumal Ahuja ] Adult, Aged 42 yrs., Occ.Service, ] Residing at Room No.8, 2nd floor, ] Building No.38, Nityanand Baug Society, ]

Mahul Road, Chembur, Mumbai – 400 074 ] … Appellant (Org. Complainant)

V/s.

1. Rekha Vithal Patil ]

Adult, Age 41 yrs., Occ. Business ] Having her shop address as Ratna Tailor, ] at Indira Market Shop No.91, ] Opp. Sion Post Office & Sion Bus Depot, ] Sion (West), Mumbai – 400 022. ]

]

2. The State of Maharashtra ]

In the Ld. M.M. 30th Court, ]

Kurla, Mumbai (CC No.4825/SS/2006) ] … Respondents (Resp.No.1 – Org. Accused)

Mr.B.S. Nayak for Appellant.

Mr.Prabhanjay R. Dave a/w. Mr.Pradeep P. Kumawat for Respondent No.1.

Mr.S.S. Hulke, A.P.P. for Respondent No.2-State.

CORAM : A.S. GADKARI, J.

RESERVED ON : 27th June 2022.

PRONOUNCED ON : 8th July 2022.

JUDGMENT :

1. This is an appeal under Section 378 (4) of the Code of Criminal Procedure by the complainant against Judgment and Order dated 11th January

2010 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Appeal No. 363 of 2007 preferred by Respondent No.1, allowing the said appeal and setting aside the Judgment and Order of conviction and sentence under Section 138 of The Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’) of Respondent No.1 by the learned Metropolitan Magistrate, 30th Court, Kurla, Mumbai in C.C. No. 4825/SS/06 dated 3rd May 2007.

2. Heard Mr.Nayak, learned Advocate for Appellant, Mr.Dave, learned Advocate for Respondent No.1 and Mr.Hulke, learned A.P.P. for Respondent No.2-State. Perused entire record.

3. It is the case of Appellant that, he knew Respondent No.1 about six years prior to lodgment of the present complaint. That, Respondent No.1 was in need of money and therefore she approached Appellant and requested for grant of friendly loan of Rs.5,00,000/- (Rupees Five Lakh Only). Accordingly, Appellant advanced friendly loan of Rs.5,00,000/- to Respondent No.1. That, Respondent No.1 in discharge of her legal liability towards repayment of said loan issued a cheque in favour of Appellant, bearing No.515582 dated 23rd March 2006 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Sion Branch, Mumbai. Appellant deposited the said cheque with his banker for encashment, when the said instrument was dishonoured and returned to Appellant unpaid with a Bank Memo dated 24th March 2006 (Exh.P-4) for the reason ‘A/C CLOSED’. After receipt of intimation from his bank, Appellant issued statutory demand notice on 10th April 2006 (Exh.P-5) through his Advocate calling upon Respondent No.1 to pay the amount due under the subject cheque within 15 days from the date of receipt of demand notice. The said notice was sent to Respondent No.1 by R.P.A.D. as well as U.C.P.. Despite receipt of notice, Respondent No.1 neither complied with the demand made therein, nor replied the notice and therefore Appellant filed present complaint under Section 138 of N.I. Act.

4. The defence of Respondent No.1 was of total denial. It was her further defence that, her signed blank cheques were stolen or misplaced from her shop and the said fact was intimated by her to her bank by letter dated 24th August 2005 and thereafter closed her account. That, Appellant thereafter misused the said blank cheque and filed present complaint to harass her. It is also her defence that, her husband expired on 1st August 2006 and after his demise her in-laws harassed her and drove her out of house. Her in-laws also snatched important documents and belongings lying in her house. That, as her husband was seriously ill and subsequently expired on 1st August 2006, she could not reply notice issued by Appellant. She has also stated that, immediately after loss/misplacement of her signed cheques / cheque-book, she immediately lodged a complaint (Exh.D-3) with Sion Police Station on 23rd August 2005 and therefore there was no question of issuin