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Received on : 01/07/2009,Registered on : 01/07/2009,Decided on : 31/07/2012.Duration : YY MM DD.
03 00 30.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, KURUNDWAD .. AT KURUNDWAD.
( Presided over by P. S. Shinde)
SUMMARY CRIMINAL CASE NO.164/2009. EXH. NO.
Miss. Bebijan Bapusaheb Patil,Age : 62 years,Occupation : Household, .. Complainant.R/o.: Aalas, Tal. Shirol,Dist. Kolhapur.
Versus
Mr. Kuber Dhanpal Ainapure,Age : 54 years, Occupation : Business, .. Accused. R/o. : Yarana Seeds Shop, Malbhag,Kurundwad. Tal. Shirol,Dist. Kolhapur.
= APPEARANCE =For the Complainant : Advocate Shri. P.R. Bhendwade,
Advocate Shri. D.D. Magdum. For the Accused : Advocate Shri. B.R. Kumbhar.
: J U D G M E N T :
( Delivered on 31st day of July, 2012)
The accused in the dock is facing trial for the offence
punishable under section 138 of the Negotiable Instruments Act.
(“ The Act” ).
The case of the complainant, in brief, is an under :
02) The accused is having Seeds shop. The complainant uses to
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purchase seeds from shop of the accused for cultivation of agriculture
property. Due to said transactions, their relations became cordial as to
even provide financial help to each other whenever required. In
January 2003, the accused in need of Rs.7,00,000/ and he requested
the complainant to give financial help for which she could arrange.
Accordingly, the complainant accumulated amount of Rs.5,00,000/
from sources within her reach and given that amount to the accused.
At that time, the accused assured for repayment till end of March,
2003. Due to cordial relations, the complainant do not taken any
writing from the accused for given amount.
03) When the complainant asked for amount in March 2003,
the accused given cheque bearing No.507459 by putting signature
thereon. He stated to fill up cheque and produce same for encahment
after 06/04/2003. When the complainant enquired with the accused
in month of April, he stated to fill up cheque with name, amount and
with date of 10/04/2003. Accordingly, the complainant got the
cheque filled up with name, amount and date from her brother
Aasmatpasha . Thenafter, she produced cheque with her bank The
Kurundwad Urban Bank Ltd., Branch Aalas (in short, 'K'wad Bank,
Aalas') for it's encahment. But, the cheque returned dishonour on
dtd.18/06/2003 with endorsement of “Refer to Drawer.” Therefore,
the complainant sent notice to the accused on dtd.18/06/2003
demanding amount of dishonoured cheque. The accused refused to
accept notice in spite of it's intimation. It is received to the
complainant on dtd.30/06/2003 with endorsement 'Refused, Returned
to Sender'. The accused failed to pay amount of dishonoured cheque
within stipulated period. Hence, the complainant filed present
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complaint against the accused for the offence punishable under
Section 138 of the Negotiable Instruments Act.
04) My Learned Predecessor stated particulars of the offence to
the accused at Exh.23. The accused pleaded not guilty and claimed to
be tried.
05) The points for determination alongwith my findings and
reasons thereon, are as under:
POINTS FINDINGS.
(1) Whether the complainant proves that the cheque, subject matter of the case, was issued by the accused for the discharge of the debt or liability ? …. No.
(2) Whether the complainant proves that the accused dishonoured the cheque for insufficiency of funds ? …. Yes.
(3) Whether the complainant proves that he issued and served the notice to the accused demanding payment of dishonoured cheque ? …. Yes.
(4) What Order ? …. The accused is acquitted.
: R E A S O N S :
06) Under said Act, being the special statute, there are the
specific presumptions in favour of the complainant. The presumption
is under S.118 of the Act, that unless the contrary is proved, every
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negotiable instrument was made or drawn for consideration and that
every such instrument when it has been accepted, endorsed,
negotiated, transferred was accepted, endorsed, negotiated,
transferred for consideration. According to S. 139 of the Act, unless
the contrary is proved, it is presumed that the holder of the cheque
received it for discharge of any debt or other legal liability, either in
whole or in part. Further, there is presumption under S.146 of the Act
that in respect of every proceeding, unless the contrary is proved, on
production of bank's slip or memo having thereon the official mark
denoting that the fact of dishonour of the cheque, it shall be presumed
to be dishonoured.
AS TO POINT NO.1 :
07) To substantiate guilt of the accused, the complainant
deposes at Exh.33 that she uses to purchase seeds from shop of the
accused for cultivation of agriculture property and due to said
transactions, their relations became cordial as to even provide
financial help to each other whenever required. She deposes that in
January 2003, the accused in need of Rs.7,00,000/ and he requested
her to give financial help for which she could arrange on which she
accumulated amount of Rs.5,00,000/ from sources within her reach
and given that amount to the accused, but due to cordial relations, she
do not taken any writing from the accused for given amount. It is
further deposed by her that when she asked for amount in March
2003, the accused given cheque bearing No.507459 (Exh.49) by
putting signature thereon. According to the complainant, the cheque
(Exh.49) was issued by the accused for discharge of legal debt.
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08) Ld. Advocate for the accused crossexamined the
complainant at length and raised various defences. He raised defence
that cheque (Exh.49) does not bear signature of the accused. In this
regard, it is necessary to state that the accused was having opportunity
to prove defence by sending cheque for it's verification by expert. But,
the accused even do not taken any of the efforts atleast to move
application for expert opinion. On the contrary, comparing signature
on cheque (Exh.49) with signature on Vakalatnama (Exh.21),
Personal Bond (Exh.27) before Predecessor of this Court shows that it
bears signature of the accused. Even, there is no report by concerned
bank that cheque (Exh.49) is dishonoured due to difference in
signature on instrument and sample signature available on record.
Hence, it is crystal clear that cheque (Exh.49) bears signature of the
accused. Therefore, at the first, I wish to rely on K. Bhaskaran Vs.
Sankaran Vaidhyan Balau and another (200(1) Mh.L.J.193 ) , in
which their Lordship held that,
“when signature on the cheque is admitted to be of the accused, presumption under S.118 of N.I.Act can legally be inferred that the cheque was drawn or made for consideration on the date when the cheque bears and S.139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the said presumption.”
09) Hence, in view of above ratio, it is clear that the accused is
burdened to rebut presumption of S.139 of the Act. However, said
burden can be discharged from material of cross examination as it is
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held in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008 All
MR (Cri.)1164), the Hon'ble Supreme Court held that,
“ an accused for discharging the burden of proof placed on him under a statue need not examine himself. He may discharge his burden on basis of the materials already brought on records. Whereas prosecution must prove the guilt of the accused beyond all reasonable doubts, the standard of proof so as to prove a defence on part of an accused is 'preponderance of probabilites'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not must, therefore, be determined keeping in view the other evidence on record. For the said purpose, steeping into the witness box by the accused is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.”
Therefore, it becomes necessary to go through cross
examination of the complainant in backdrop of above ratio.
10) In course of crossexamination, it is suggested to the
complainant that there was a partnership business of Shree Hotel
amongst her father and the accused at Nursinhwadi, in which the
accused was given cheques to her father and she misused same after
demise of father. Said suggestions are came to be flatly denied by the
complainant. But, real brother of the complainant viz. Aasmatpasha
(CW3) clearly admitted about existence of such partnership hoteling
business amongst his father and that of the accused. Hence, according
to the accused, the complainant misused cheque given by his brother
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JUDGMENT
to father of the complainant in partnership business. But, in this
regard, it could not be overlooked that there is no suggestion of
having partnership business with brother of the accused and it is only
with the accused. Hence, the accused himself is not firm on defence as
to with whom, father of the complainant was in partnership business.
11) Further, the accused also examined bank witness Keluskar
(AW1) who deposes at Exh.59 that Account No.1704 belongs to APP
Associates and he produced Account Opening Form (Exh.60) and
Account Extract (Exh.61) which shows that account No.1704 is of
APP Associates. However, from Account Opening Form (Exh.60) and
Account Extract (Exh.61) or even oral testimony of Keluskar (AW1), it
could not be ascertained that father of the complainant is a partner of
APP Associates with the accused or his brother. Furthermore, it could
not be ascertained from cheque (Exh.49) that it is drawn on behalf of
partnership firm. In the result, I find no substance in argument that
the complaint is not maintainable as not against the accused as
partner of the firm and that the complainant misused cheque (Exh.49)
given to her father by the accused or his brother in partnership
business.
12) Ld. Advocate for the accused suggested to the complainant
in crossexamination that she has no capacity to pay amount of
Rs.5,00,000/ to the accused. The complainant denied the suggestion.
She further admitted that she has not given that amount by
withdrawing same from the bank. She stated that she accumulated
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that amount from other sources and also, from amount received after
allotting the landed property on mortgage. Surprising enough, that the
complainant do not made any whisper either in the complaint or
examinationinchief about source of amount from mortgage money of
landed property. She further stated that she given landed property on
mortgage to one Mahaveer Pomaje.
13) Mahaveer (CW2) deposes at Exh.43 that the complainant
handed over her share from Block No.1804 to his sisterinlaws viz.
Vimalatai and Rekha for amount of Rs.2,50,000/ on mortgage,
Whereas brother of the complainant Aasmatpasha handed over his
share from Block No.1804 to sisterinlaws viz. Vimal and his wife
Surekha for amount of Rs.2,50,000/ on mortgage. It is further
deposed by him said properties are mortgaged to his family members
on dtd.04/03/1999 for period of ten years. But, it is surprising to note
that Aasmatpasha (CW3) do not averred a single word in his
examinationinchief about any such transaction, though stated about
it in course of crossexamination. Moreover, it is not case of the
complainant that she given amount to the accused in the year 1999 as
to show that amount of mortgage is a source of handloan given him.
On the contrary, she came with specific case of handing over amount
of handloan in January, 2003.
14) In addition, Aasmatpasha (CW3) stated in course of cross
examination that amount of Rs.1,00,000/ belonging to him, amount
of Rs.2,15,000/ received from Mahaveer and remaining amount from
the complainant herself was given to the accused. It is further stated
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JUDGMENT
by said witness that the complainant accumulated said amount from
above stated source alongwith Rs.50,000/ from aunt Bebijan
Madiwale, amount of Rs.50,000/ from one Shivaji Patil and amount
of Rs.25,000/ from one Ajit Danole. Therefore, it is crystal clear that
Aasmatpasha (CW3) contradicts evidence given by the complainant
and Mahaveer (CW2) in relating to source of handloan amount given
to the accused. Hence, in light of above evidence, suggestions on
behalf of the accused as to whether it is true that amount is given to
the accused at one stroke and that the amount is given on same day of
stamp by the accused cannot be treated as fatum of admission of
taking amount by the accused, but those are the suggestions only to
destruct case of the complainant for doubting her financial capacity.
15) In course of crossexamination, the complainant stated that
she has taken written stamp from the accused at time of giving
amount. She stated her readiness to produce socalled written stamp
in the Court. Though socalled written stamp available to the
complainant as a best evidence in proof of giving loan amount, she do
not produced socalled deed till today. Hence, it could be a ground to
draw adverse inference against the complainant that she has not
produced alleged stamp only because it would be evidencing that
cheque (Exh.49) is not issued for any debt.
16) Here, I wish to rely on Nishith M.P. Verlekar V.
Aqshpaque Marfani (2009 All MR (Cri.) 1001), in which it is held
by the Hon'ble Lordship that,
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“ In order to ascertain as to whether the accused has discharged the burden cast on him under S.139 of N.I. Act, the probabilities of the case including the probability that the complainant was in a position to advance the large sums of money, has to be taken into consideration.”
17) Hence, in light of the above stated ratio and due to
improved version of the complainant alongwith contradictory evidence
of the witnesses about source of handloan amount and absence of the
witness to transaction; there is a room for doubt about financial
capacity of the complainant for giving such huge amount towards
hand loan and that too, without any written deed for security. In
circumstances, though the accused do not given any police report or
intimation to bank to stop payment, it is probable that the
complainant might have misused cheque (Exh.49). For the reasons, it
is crystal clear that the complainant failed to discharge initial burden
that she was in a position to advance at least cheque amount to the
accused by way of handloan at the relevant time.
18) In view of foregoing discussion, it is crystal clear that the
complainant failed to discharge initial burden that he is paying
capacity of alleged amount. Further, there is no evidence that cheque
(Exh.49) is issued only towards satisfaction of any debt. Therefore,
presumptions under Section 138 and Section 139 of the Act are
rebutted by material brought out in crossexamination. Resultantly,
point No.1 is answered in the negative.
AS TO POINT NO .2 :
19) The complainant deposes that she deposited cheque
(Exh.49) with K'wad Urban Bank, Br. Aalas for it's encashment, but it
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JUDGMENT
got dishonoured with remark of 'Not Arranged For'. Bank
communicated fact of dishonoured cheque (Exh.49) to the
complainant by Return Memo (Exh.50) on dtd.18/06/2003. Cheque
(Exh.49) comparing with return memo (Exh.50) shows that it is
presented to the bank for encashment within stipulated period of six
months, but returned unpaid with remark of 'Not Arranged For'. As
per S.146 of the Act, Bank Return Memo (Exh.50) is primafacie
evidence of dishonour of cheque (Exh.49). Return Memo (Exh.50)
with official endorsement 'Not Arranged For' clearly established
factum of dishonour of cheque. Hence, point No.2 is answered in the
affirmative.
AS TO POINT NO.3 :
20) According to the complainant, she sent notice (Exh.51) to
the accused on dtd.26/06/2006 for demanding amount of
dishonoured cheque (Exh.49) and it returned back with endorsement
'Refused'. Hence, as per provisions of General Clauses Act, it is duly
proved by the complainant that demand notice (Exh.51) for payment
of dishonoured cheque (Exh.49) sent by her duly served to the
accused. Hence, point No.3 is answered in the affirmative.
AS TO POINT NO.4 :
21) Though, the complainant established that cheque (Exh.49)
get dishonoured and demand notice (Exh.51) for payment of
dishonoured cheque served to the accused, she failed to discharge
initial burden that she advanced alleged amount by way of loan. In the
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result, affirmative conclusion about bouncing of cheque (Exh.49) and
service of demand notice (Exh.51) is not helpful to the complainant to
prove guilt of the accused. The complainant failed to prove basic
ingredient of the offence beyond shadow of doubt that cheque
(Exh.49) is issued for discharge of debt. Hence, the accused will have
to be acquitted. In the result, I pass the following order in answer to
point No.4 :
: O R D E R :
(1) The accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act vide Sec. 255(1) of the Code of Criminal Procedure.
(2) The bail bonds of the accused stands canceled.
Kurundwad. (P. S. Shinde) Date: 31/07/2012. Judicial Magistrate First Class,
KURUNDWAD.
Summary Criminal Case No.164/2009
: JUDGMENT :
(Delivered on 31st July, 2012)
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