Rajesh s/o Kishorilal Girdhar vs Miss Sanjana d/o Krishna Khobragade

Being aggrieved by the judgment and order dated

29/04/2006 passed by the 5 th Joint Civil Judge, Junior Division and

Judicial Magistrate first Class and (Special Court) under Section 138 of

the Negotiable Instruments Act, Nagpur in Summary Criminal

Complaint No.848/2005, the appellant - original complainant has

preferred this appeal. The brief facts of the case are as under :-

The appellant - complainant has filed a complaint

under Section 138 of the Negotiable Instruments Act against the

accused (the appellant hereinafter be referred as "complainant" and the

respondent No.1 hereinafter be referred as "accused"). It is contended

that he had cordial relations with the accused and her father since last

several years. The accused was in need of money for her business

purpose and therefore, she demanded amount of Rs.45,000/- as a hand

loan from him. According to him, he had given loan amount to the tune

of Rs.45,000/- to the accused. It is further contended that the accused

has given cheque bearing No.113451 of Rs.45,000/- towards the

repayment of the loan. He presented the said cheque in the Nagpur

Nagrik Sahakari Bank Ltd., Ganjakhet Branch, Nagpur for realization.

However, the same was returned back unpaid with endorsement "funds

insufficient". He thereafter issued a legal notice through RPAD. The

same was served. The accused, however, not repaid. Therefore, he

constrained to file a complaint before this Court.

In response to the Court summons, the accused

appeared in the proceeding. After recording the evidence in the matter

and on hearing both the sides, the learned Magistrate acquitted the

accused for the offence punishable under Section 138 of the N.I.Act.

Feeling aggrieved by the said Judgment and order

dated 29/04/2006 passed by the learned Magistrate, the complainant

has preferred this appeal.

None present for the appellant - complainant. I have

heard Shri R.R. Vyas, the learned counsel for the respondent No.1 and

Mrs. S. V. Kolhe, the learned APP for the respondent No.2-State at

length.

Shri Vyas, the learned counsel for the respondent

No.1-accused vehemently submitted that the notice issued by the

complainant for demand of the amount after dishonour of cheque is in

respect of Cheque No.117354 dated 23/09/2004 of Rs.45,000/-.

However, the cheque No.113451 dated 22/09/2004 of Rs.45,000/-

dishonoured is at Exh.15. He, therefore, submitted that the notice of

demand is illegal and cannot be considered. He further submitted that

there is no mention of interest in the amount claimed by the

complainant. He also submitted that the income of the complainant is of

Rs.5,000/- to Rs.6,000/- per month and therefore, there is no possibility

that he advanced loan of Rs.80,000/-. The defence of the accused that

she has taken Rs.22,000/- as hand loan from the complainant and given

blank cheque for security. The accused has also examined two witnesses

and proved the said defence. The learned Magistrate has considered the

aspect of the case on both the sides and rightly acquitted the accused.

The appeal, therefore, be dismissed.

The learned APP has submitted that the State is a

formal party and therefore, necessary order be passed.

Considering the submission of the learned counsel for

the accused and after perusing the material placed on record, I am of

the view that the impugned Judgment and order acquitting the accused

for the offence under Section 138 of the N.I.Act is just and proper and

no interference of this Court is called for.

It is to be noted that the complainant has stated in the

complaint that the cheque of Rs.45,000/- was given by the accused and

description of the cheque is given by him that cheque No.113451 dated

22/09/2004 of Rs.45,000/-. It further appears that the cheque is at

Exh.15. However, the notice given by him vide Exh.18 is in respect of

cheque No.117354 dated 23/09/2004 for Rs.45,000/-. The demand

notice of the accused is different than the cheque mentioned in the

complaint. The complainant though tried to show that there was

typographical mistake, however, the same cannot be accepted. The

complainant in the cross-examination has stated that he knows the

accused since last four years. However, does not know the father of the

accused. In the cross-examination, he also stated that the father of the

accused met him in the year 2004 along with the accused. It was

suggested to him that the amount of Rs.22,000/- was paid to the

accused as hand loan and he obtained the blank cheque signed by the

accused, but he denied. It was also suggested to him that he had also

taken cheque from the father of the accused towards the repayment of

loan of Rs.22,000/-, but he denied. The evidence of the complainant is

not cogent one to show that he has advanced loan of Rs.45,000/- to the

accused and towards the repayment of the said loan, the cheque was

issued by the accused. The presumption under Section 139 of the

N.I.Act is not available to the complainant, as the said amount is not

towards loan amount.

The accused has also adduced her evidence vide Exh.30

and denied the allegations made by the complainant in the complaint

and also stated that the blank cheque was given towards security. She

was cross-examined at length. However, nothing was brought on record

to show that he has paid amount of Rs.45,000/- to her. The accused has

also examined DW-2 Amit Suresh Puniyani at Exh.32 and DW-3 - Ritesh

Fuke at Exh.33. Both these witnesses have stated that the complainant

had taken blank cheque from the accused for the amount of loan of

Rs.20,000/-. The defence of the accused appears to be probable one and

therefore, the cheque at Exh.15 cannot be said to be given towards the

loan of Rs.45,000/- as contended by the complainant. The learned

Magistrate has considered all these aspects and rightly acquitted the

accused. No interference of this Court is called for. The appeal filed by

the complainant is devoid of any merit and liable to be dismissed and

accordingly dismissed.