2014 ALL MR (Cri) 4691
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

R.C. CHAVAN, J.

Central Bank of India Vs. Shri Prabhakar Gurudas Shirodkar & Anr.

Criminal Appeal No.26 of 2012

9th July, 2013

Petitioner Counsel: Shri SUDIN USGAONKAR
Respondent Counsel: Shri M. AMONKAR

Negotiable Instruments Act (1881), S.138 - Dishonor of cheque - Appeal against acquittal - Finding by Magistrate that "cheque was not issued in respect of loan mentioned in complaint" - Inspite of fact that in complaint or in notice, no details of loan amount was mentioned - Trial Court ought to have recorded word "only" after words "cheque in question was not issued" - Complainant had also placed on record a letter by which accused had given the cheque in question - Complainant established a clear case of dishonour of cheque issued by accused - Careless finding recorded by Magistrate led to miscarriage of justice - Fit case to set aside acquittal order - Hence, accused to be convicted u/s. 138 of NI Act. (Paras 4, 5, 6)

JUDGMENT

JUDGMENT :- This appeal is directed against acquittal of respondent no.1 for offence punishable under Section 138 of the Negotiable Instruments Act recorded by the learned JMFC, Mapusa after the trial of Criminal Case No.OA/943/P/10/B.

2. The appellant-complainant is a public sector bank which claimed to have advanced a loan to respondent no.1-accused. The respondent no.1 issued a cheque for Rs.80,000/- (Rupees Eighty thousand only) bearing no.4639 dated 30/09/2010 in favour of the complainant-bank in discharge of the liability and the debt in part on the part of the accused. The cheque was presented for collection but was returned with the remarks "Funds Insufficient" as per the bank's advise dated 12/10/2010. On 16/10/2010, the complainant-bank sent the notice to the accused which was received by the accused on 18/10/2010 demanding payment of the amount under the dishonoured cheque. The respondent no.1-accused did not comply and did not even bother to reply. The complainant-bank then filed the complaint before the learned Magistrate.

3. After examining the complainant and the documents produced by the complainant the learned Magistrate issued process. The accused appeared and the particulars of the offence were explained to the accused. He pleaded non guilty and therefore was put on trial. At the trial, complainant's branch Manager filed an affidavit in lieu of his examination-in-chief and was cross-examined on behalf of the accused. No further evidence was tendered on behalf of the complainant and the accused too did not tender any evidence in defence. After considering the arguments advanced in the light of defence made by the accused in his statement under Section 313 of the Criminal Procedure Code the learned Magistrate proceeded to acquit the respondent no.1-accused. Aggrieved thereby the bank is before this Court.

4. I have heard the learned Counsel appearing for the appellant and the respondent no.1 and have gone through the complaint as well as the evidence on record. It is unfortunate that the learned trial Magistrate allowed himself to be swayed by his own mistake in recording evidence. He should have seen that as a Magistrate he was required to record what the witness intended to say and that he was not a mere recording machine. The learned Magistrate recorded during the course of cross-examination that "in the complaint or in the notice details of loan amount and number is not mentioned". Thus the learned Magistrate was aware, and he must have been aware from reading of the complaint and the notice as well, that these details were not in the complaint. Then he proceeded to record the following sentence; "The cheque at exhibit 9-C was not issued in respect of the loan mentioned in the complaint but was issued towards other loans obtained by the accused and his wife from the bank". Now, if the witness had categorically stated that details of loan amount and number were not mentioned in the complaint the learned trial Magistrate should have seen that there was no question of cheque being issued in respect of loan account mentioned in the complaint because no such loan account was mentioned. The learned Counsel appearing for the appellant is right in pointing out that the learned trial Magistrate ought to have recorded the word "only" after the words "exhibit 9-C was not issued" and then was carried away by his own mistake, by resting his judgment on this aspect, forgetting that there was a public sector bank which was seeking to recover its loan for which accused had given the cheque and had not even bothered to answer after notice which was issued upon dishonour of the cheque. The learned Counsel for the appellant also rightly points out that in this case the complainant had placed on record a letter dated 10/08/2010 under which accused had given the cheque in question to the bank. In this letter which is marked as exhibit 12-C by the learned Magistrate, the accused had stated that "I will pay the sum of Rs.80,000/- (Rupees Eighty thousand only) for all my loan accounts including my wife's accounts", and that he would regularize the loan account before 30/09/2010 and that he was enclosing the cheque in question, which was then dishonoured. Therefore, the complainant had established a clear case of dishonest dishonour of the cheque issued by the accused for which the accused deserves to be punished. But the learned Magistrate seems to have been swayed by several judgments cited on behalf of the accused which have absolutely no bearing on the case, considering the facts established.

5. There can be no doubt that the accused is not required to enter the witness box in order to rebut the presumption raised under Section 139 of the Negotiable Instruments Act and that the burden can be discharged by preponderance of probabilities and the accused need not prove his innocence beyond the pale of doubt. But here cross-examination which is sought to be relied upon by the accused as well as by the learned Magistrate itself was carelessly recorded and the learned Magistrate failed to note that his careless recording led to miscarriage of justice. At the cost of repetition it has to be pointed out that when the learned Magistrate noticed that there were no details of the loans in the complaint, there was no question of the cheque being not issued in respect of the loan mentioned in the complaint. In view of this, inspite of a very strong plea by the learned Counsel of the respondent no.1 that acquittal should not be lightly overturned, this is a case where the judgment has to be set aside, as the findings recorded are perverse.

6. The appeal is therefore allowed. The judgment of the learned trial Magistrate is set aside. The respondent no.1 is held guilty of offence punishable under Section 138 of the Negotiable Instrument Act. The respondent no.1 shall pay to the appellant-bank a sum of Rs.1,60,000/- (Rupees One Lac Sixty thousand only) towards compensation within a period of two weeks. If the amount is not deposited with the learned trial Magistrate within this period the respondent no.1 shall be sent to prison for a period of three months for default of payment of compensation.

Appeal allowed.