Negotiable Instruments Act, 1881 – Section 138 – cheque was taken as a security – complainant failed to prove cordial relations between him and the accused – the complainant failed to show that he did have capacity to lend such huge amount – Complainant is not corroborated by any other evidence other than his evidence that he had such money and did handover such money to the accused – In the cross-examination accused has shown that complainant has failed to show availability of such amount or capacity and also that there were no such relations to lend such huge amount. Thus the presumption putting onus on accused is rebutted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 19TH SEPTEMBER, 2016
CRIMINAL APPEAL NO.172 OF 2014
Shaikh Farooq s/o. Shaikh Amir Bagwan, Age-43 years, Occu:Business, R/o-Sabjimandi, Paithan Gate, Aurangabad….APPELLANT VERSUS 1) Shaikh Rafiq s/o. Shaikh Ayyub, Age-41 years, Occ:Business, R/o-Near Joshi Hospital, Kokadpura, Sabjimandi, Aurangabad. (Orig. Accused) 2) The State of Maharashtra …RESPONDENTS … Mr. Ajit D. Kasliwal, Advocate for Appellant. Mr. Pathan Mohsin Khan, Advocate for Respondent No.1. Mr. K.S. Hoke Patil, A.P.P. for Respondent No.2. …
1. This Criminal Appeal has been filed by the original complainant (hereafter referred as “complainant”) against the acquittal of Respondent No.1 – original accused (hereafter referred as “accused”) in Summary Criminal Case No.820 of 2012 by J.M.F.C. Court No.20, Aurangabad on 27th June 2013 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” in brief).
2. The complaint filed by the complainant in the trial Court claimed that the accused was friend of the complainant and they had cordial relations since long and also belong to same community. In Ramzan of 2011 accused was in need of money for his business and approached the complainant with the request of hand-loan of Rupees One Lakh. Considering the request of the accused and the relations, complainant told the accused that it was a huge amount and it would be preferable to execute an agreement. The accused however, suggested that he will execute cheque of hand-loan amount for repayment of hand-loan to which Complainant agreed and gave hand-loan of Rupees One Lakh in cash to accused. In discharge of the liability to repay the hand-loan, the accused executed cheque bearing No.000005 dated 1st October 2011 for Rupees One Lakh drawn on Bank of Baroda, Branch Sabji Mandi, Aurangabad, in the name of the complainant. Accused agreed to repay the hand-loan on the given date of the cheque i.e. 1st October 2011. On the given date, complainant presented the cheque but it returned unpaid with memo dated 1st October 2011 with reason that opening balance was insufficient. Complainant informed this to the accused. Accused said that he was expecting funds in December. As per instructions of the accused, the complainant again presented the cheque on 21st December 2011 but again it was returned unpaid with memo dated 21st December 2011 stating reason that the opening balance was insufficient. Complainant issued demand notice dated 17th January 2012 by R.P.A.D. through Advocate Shakeel Ahmed. Notice was served on 19th January 2012 as on that date the postman gave intimation to the accused but he avoided to accept the notice. The amount remained unpaid and thus the complaint dated 14th February 2012 was filed.
3. The trial Court explained particulars of offence under Section 138 of the Act to the accused. The accused pleaded not guilty. His defence is of denial and as claimed in statement under Section 313 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” in brief) defence taken was that blank cheque was issued only against an amount of Rupees Five Thousand which was taken.
4. In the trial Court, the complainant filed his affidavit at Exhibit 20 by way of examination-in-chief on the above lines of the complaint. Complainant came to be cross-examined. Complainant proved the cheque Exhibit 23 which had been issued and the memo from the Bank dated 21st December 2011 at Exhibit 24. The money receipt for sending the notice by Registered Post was proved at Exhibit 25-C. Copy of the notice sent was proved at Exhibit 35. From the unserved envelope Exhibit 26(1) trial Court appears to have taken out the notice which was sent in the envelope. It turned out that the notice did not bear any signature and trial Court endorsed the document as not proved by the complainant. Consequently, the complainant examined C.W. No.2 – Advocate Shaikh Shakeel Ahmed, who deposed regarding sending of the notice by Registered Post A.D. and claimed that while sending the notice, he did not see on the back side of the notice and thus it remained unsigned by him. It was noticed that there was over-writing in the date of the copy of the notice Exhibit 35 where the printed date was scribbled and another date of 17th January 2012 was written by hand. This Advocate Shakeel Ahmed CW-2 claimed that on 5th January 2013 he had to file two examination-in-chiefs in Court and wrongly in another matter of Imran vs. Ravi while preparing list of documents, Exhibit 35 got wrongly listed and he put the date of notice thinking it to be of that matter and when he saw the addressee, he removed the document Exhibit 35 from that matter and thus he claimed that there was over-writing in date.
5. The complainant and his witness, both were cross-examined. Trial Court considered the evidence brought and after considering the evidence and the defence, the trial Court passed Judgment of acquittal.