1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO.3814/2006 IN CRIMINAL APPEAL NO.433/2009 ( Maharashtra Finance Prop. Shri Sushil Bharut vs. Mohd.Bashir Allauddin Sabri and another ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr. S.S.Deshpande, Adv. for appellant/applicant Mr. M I Dhatrak,Adv.for Res.No.1 Mr. D.P.Thakare, APP for Res.No.2 C ORAM : A.P. BHANGALE, J. DATED : 23rd September, 2009. 1. Heard learned counsel for the respective parties. By the instant Application, the applicant is seeking leave to appeal seeking to challenge the impugned judgment and order dated 24.07.2006 passed in Summary Criminal Case No.2812/2000 by the learned Judicial Magistrate, First class Yavatmal. 2. My attention has been invited to the impugned judgment and order as also the evidence of the complainant in the trial Court. It appears that in the evidence of the complainant, there was clear admission that in the year 1997 the complainant had received total loan amount from the accused. My attention is further invited to the fact that complainant admitted that second loan was not advanced for purchasing the same vehicle. The transaction of loan was of the year 1997 and the accused had neither sought for production of any accounts nor adduced any oral or documentary evidence to show his exact liability; but he had produced the post-card (Exh.34 ), the contents of which were admitted by the complainant. The letter bears the date 28.5.1997 as per the postal stamp. Thus, it is disclosed by the letter that third installment amounting to Rs.9,300/- were un-paid and were accordingly demanded. The letter do not speak about the total outstanding dues but it is 2 clear that it pertains to the affair in the year 1996. The letter itself is dated 28.5.1997. Coupled with this, the admission in the course of cross- examination by the complainant that the entire loan was received in 1997 itself do indicate that even assuming for the sake of arguments that the cheque in the sum of Rs. 40,500/- was issued on 2.9.2000 (the date which the cheque bears), it cannot be said that at that time there was any legally enforceable debt or liability to be discharged by the accused. Under these circumstances, the case of the complainant that second loan was advanced in respect of purchase of the same vehicle in the year 1998 and the cheque was drawn to repay that second loan could not have been accepted without any reason to believe the same. The contention appears to be an after-thought and the trial Court rightly overruled it by concluding that the cheque in question (Exh.25) was not drawn in order to discharge any legally enforceable debt or liability. The conclusion arrived at by the trial Court has sound basis in the admission, which the complainant’s witness gave in the course of his cross- examination. 3. An useful reference can be made to the ruling in Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities ltd : (2002) 2 SCC 745, more particularly paragraph no.10 thereof. The five vital ingredients of the offence punishable u/s 138 as laid down by the Apex Court are couched in the following terms : (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; 3 (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 30 days of the receipt of the said notice.” 4. Thus in view of Section 138 of the Negotiable Instruments Act, all the above vital ingredients of offence are required to be proved before the Court and if any of these five ingredients is absent, the trial Court wouldbe justified in acquitting the accused in such a case of dishonour of the cheque. Furthermore, the acquittal by the trial Court has bolstered up the presumption of innocence and, therefore, unless there are substantial and compelling reasons to upset the trial court’s decision, there would be no justification for the Appellate Court to interfere with the impugned judgment and order. Unless it is shown clearly that findings are unreasonable or that relevant and convincing material have unjustifiably been eliminated in the process of reasoning, no interference is permissible. 5. Bearing these principles in mind, there is no acceptable ground to interfere with the impugned judgment and order. Hence leave is refused. Consequently, the Appeal is also dismissed. JUDGE. Sahare