2010 ALL MR (Cri) 1879
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
P.R. BORKAR, J.
Bapurao S/O. Bhaurao Kadam Vs. Tukaram S/O. Nagnath Waghmare & Anr.
Criminal Appeal No.206 of 1999
29th January, 2010
Petitioner Counsel: Shri. SARANG JOSHI,Shri. M. V. DESHPANDE
Respondent Counsel: Shri. D. S. RAUT,Shri. G. G. SURYAWANSHI,Shri. K. M. SURYAWANSHI
Negotiable Instruments Act (1881) Ss.138, 142 - Dishonour of cheque - Complaint under S.138 - Complaint not filed within one month of date of service of demand notice - Complaint not tenable. (Para 5)
JUDGMENT :- This is an appeal by original complainant against the order of acquittal passed by the learned Chief Judicial Magistrate, Nanded in Summary Criminal Case No.181 of 1994 decided on 13.9.1996.
2. Briefly stated, it is the case of the appellant-complainant that he had supplied food grain and cash of Rs.1.00 lakhs to respondent No.1-accused. Accused was running three hostels, two at Nanded and one at village Mangal-Sangvi. He was also promoter of a housing society. Towards food grain supplied by complainant, accused issued a cheque of Rs.43,000/= in favour of the complainant which he presented to the bank on 20.8.1993, but the same was bounced. The said cheque was issued by the accused in his capacity as chairman of the housing society "Yogi Vithalraj Guru Maharaj Seva Sahakari Grah Nirman Sanstha, Gopal Chavadi, Nanded".
3. After the cheque was bounced, the appellant-complainant issued first notice to Respondent No.1 accused on 22.8.1993 and thereafter on 27.9.1993, 25.10.1993, 7.12.1993. All the notices were returned as unserved and, therefore, notice through paper publication was issued by appellant on 18.2.1994. In spite of such public notice, respondent No.1-accused did not pay the amount and, therefore, the complainant filed complaint on 17.3.1994.
4. In the first instance, it was the defence of the accused that he was unable to write properly and the cheque book belonging to him containing cheques signed by him was lost. Secondly, it was defence of the accused that the cheque issued on behalf of the housing society is to be signed by the Chairman and Secretary and on the disputed cheque there is only signature of the Chairman. Thirdly it is denied by accused that any cash or food grains were supplied to him or his hostels by the complainant.
5. The learned trial judge held that there was no independent evidence and that it is not stated as to who had filled in the contents of the cheque, such as, the date, name of payee, the amount, because the signature of accused-respondent No.1 appearing on the cheque itself shows that he was unable to write properly. Moreover, even if the earliest notice was on 22.8.1993 and notices subsequently issued were returned unserved, last notice being dated 7.12.1993, the complaint was not lodged immediately within one month thereafter as the same was filed on 17.3.1994. So, the complaint was beyond the time prescribed and thus not in limitation as required by Section 142 of the Negotiable Instruments Act.