CRIMINAL APPEAL NO. 73/2014

13th January 2020

Petitioner Counsel: Shri Shailendra G. Bhobe
Respondent Counsel: Shri Rohan Dessai
Act Name: Negotiable Instruments Act, 1881

HeadLine : Negotiable Instruments Act (1881), S. 138 – Dishonour of cheque – Acquittal – Complainant claim that cheque issued for repayment of loan given to Accused
Monthly income of accused Rs.4,671/-; difficult to understand how society sanctioned loan Rs. 2,50,000/- w/ monthly installment Rs. 5,160/- - No application for loan on day of sanctioning – No loan obtained, seems probable – Acquittal, proper.

Section :
Section 118 Negotiable Instruments Act, 1881 Section 138 Negotiable Instruments Act, 1881 Section 139 Negotiable Instruments Act, 1881

Cases Cited :

JUDGEMENT

The appellant challenges the judgment dated 04.09.2014 passed by the learned Judicial Magistrate, First Class, Vasco in the Criminal Case No.24/OA/NIA/2012/C, pursuant to which the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (Act for short hereinafter) came to be dismissed and the accused was acquitted of the said offence.

2. Aggrieved by the said judgment, the appellant challenged the same on the grounds that the learned Trial Court had misdirected itself on facts and in law while passing the impugned judgment. The learned Trial Court failed to consider the statutory presumptions that arose in favour of the appellant under Sections 118 and 139 of the Act and further to evaluate the evidence adduced by the appellant bearing in mind the said statutory presumptions. The learned Judicial Magistrate, First Class failed to consider that the respondent no.1 had admitted that he had signed the dishonoured cheque and in view thereof, ought to have drawn the necessary presumption in favour of the complainant that there was a legally enforceable debt in their favour and on account of the dishonour of the cheque, the appellants were entitled to a judgment of conviction in their favour. The learned Judicial Magistrate, First Class failed to come to the conclusion that the respondent no.1 was successful in rebutting the presumption under Section 139 of the Act. The learned Trial Court ought to have considered that the respondent no.1 was the manager of the appellant at the time of the loan application and there could not have been any manipulation in the loan application. The impugned judgment was liable for interference on such and similar grounds taken in the appeal memo and therefore the appeal had to be allowed.

3. Heard Shri Shailendra G. Bhobe, learned Advocate on behalf of the appellants who reiterated the grounds urged in the appeal and submitted that the learned Trial Court had erroneously held that the respondent no.1 had probablised his defence. He adverted to the impugned judgment and submitted that in the face of the undisputed signature of the respondent on the cheque, the predicates of Section 138 of the Act stood amply proved and therefore, it was a fit case to convict the respondent. Shri Rohan Dessai, learned Advocate for the respondents submitted that the appellants had miserably failed to show that the cheque was issued in discharge of a legally enforceable debt and therefore, looking to the tenor of the findings in the judgment, the respondent had clearly established his case in defence and therefore, no interference was called for with the judgment under consideration.

4. i have heard Shri S. Bhobe, learned Advocate for the appellant and Shri Rohan Dessai, learned Advocate for the respondents and besides considered the judgment under challenge.

5. No doubt, the respondent no.1 had issued the cheque in question favouring the appellant, however, a look at the judgment under challenge would indicate that there were clear flaws in the transaction going to the root of the matter probabalising the defence raised by the respondent. In that context, the learned Judicial Magistrate, First Class had rightly found favour with the contention on behalf of the respondent no.1 that no loan whatsoever was granted by the appellant to the respondent. Furthermore, there were discrepancies in the dates regarding the said transaction in which the appellant claimed that the loan was granted to the said respondent. The learned Trial Court had also found favour with the contention on behalf of the respondent that with the monthly income of the respondent being only `4,671/- then how at all the appellant could have sanctioned the loan of `2,50,000/- to the respondent with equated monthly installment of `5160/- which was much more than his entire monthly earnings. The learned Judicial Magistrate, First Class had found favour with the case in defence that no loan was obtained by the respondent much less the plea of the appellant that it was granted for expansion of his business. It is another matter that the appellant had failed to show that the respondent was in some business and that in that connection he had obtained the loan for the expansion of his business.

6. Shri Rohan Dessai, learned Advocate for the respondent had touched upon the relevant findings of the learned Judicial Magistrate, First Class in the impugned judgment to show how the respondent had rebutted the statutory presumptions. It was borne out from the records that the process of the loan started with the application for the loan of the borrower and thereafter, the borrower had to submit all his documents to the appellant to sanction the loan and only thereafter the documents were placed before the managing committee which took a decision depending upon the paying capacity of the borrower and only thereafter was the loan sanctioned. The learned Judicial Magistrate had found on the basis of the evidence produced on record on behalf of the said respondent that the loan application was allegedly made by him on 29.06.2009 unlike the resolution adopted by the appellant’s managing committee on 17.06.2009 sanctioning the loan much before it could even be applied for by the respondent. The learned Judicial Magistrate, First Class had also found that the accused was not a part of the meeting held on 17.06.2009 and in view of the same, it was difficult to understand how the application for loan was placed by the chairman in the meeting on 17.06.2009 and how the loan came to be sanctioned even before the application came to be filed by the respondent. The very fact that there was no loan application as on 17.06.2009 falsified the contents of the minutes of the resolution produced by the appellant.

7. The learned Judicial Magistrate, First Class had further clearly held that there was no application for loan placed before the committee in the meeting held on 17.06.2009 as no such application was in existence on that day. The learned Judicial Magistrate, First Class had therefore, rightly held that the defence of the accused that he had not obtained any loan from the appellant was probabilised and in view of the matter held that the ingredients of the offence under Section 138 of the Act were not proved and acquitted the respondent of the said charge by the judgment under challenge. The appellant had as rightly submitted by Shri Dessai miserably failed to show that the cheque though signed by the respondent was issued in discharge of a legally enforceable debt and therefore, the learned Judicial Magistrate, First Class had rightly acquitted the accused.

8. No interference is called for with the judgment under challenge and in view thereof, i do not find any merit in the appeal which is accordingly dismissed.

Decision : Appeal dismissed.