1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1093 OF 2009 IN CRIMINAL APPEAL ST.NO.234/2009. Shrikant Bhavadu Chaudhari ... Applicant. Versus R.G.Lohar & Sons, Partner Bhagwandas Ramlal Lohar. ... Respondent. ... WITH CRIMINAL APPLICATION NO.1097 OF 2009. IN CRIMINAL APPEAL ST.NO.235 OF 2009. Shrikant Bhavadu Chaudhari ... Applicant. Versus R.G.Lohar & Sons, Partner Bhagwandas Ramlal Lohar ... Respondent. ... Mr.Girish A.Nagori, advocate for the applicant. Mr.S.C. Bora, advocate for the Respondent. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 05.08.2009. PER COURT 1. Heard. 2. Both these applications, seeking leave to appeal are being decided together inasmuch as there is similarity in the pleadings and the case put forth by the applicant. The Respondent was prosecuted in private complaint cases bearing SCC No.56/2006 and SCC No.1951/2005. It was alleged that the Respondent issued cheque bearing No. 412621 for Rs.3,50,000/- (Rupees three lacs fifty thousand) towards repayment of amount of hand loan which was due from him. The case of the applicant in the context of SCC No.56/2006 was that on 25.9.2004, the Respondent demanded loan of Rs.3,50,000/- (Rupees three lacs fifty thousand) to him. On account of cordial relationship, he lent the amount after withdrawal of such amount from Sawada Urban Cooperative Credit Society Ltd. The Respondent agreed to repay the amount within a period of two months but could not repay the same. Consequently, when demanded, the Respondent issued a cheque dated 3 20.9.2005, drawn on JDCC Bank Ltd., Jalgaon, Sawada Branch. He instructed the applicant to put the cheque in question for encashment after one month. The cheque was deposited with the Punjab National Bank, Sawada Branch, on 21.11.2005 but was dishonoured. Though, demand notice was served, yet, the Respondent did not pay the amount and hence, the private complaint case was instituted. 3. In SCC No.1951/2005, the case of the applicant was that due to friendship, he lent an amount of Rs.1,00,000/- to the Respondent after withdrawing the same from his Cash Credit loan account with Sawada Urban Cooperative Credit Society, Sawada on 3.1.2005. The Respondent assured to repay the amount within a couple of months. Still, however, the Respondent did not keep the word and did not repay the loan amount inspite of several demands. Therefore, lastly, demand was made which prompted the Respondent to issue the cheque dated 20.10.2005, bearing No. 202912 for Rs.1,00,000/- (Rupees one lac) drawn on JDCC Bank, branch Jalgaon. The cheque was 4 deposited with the Punjab National Bank, Branch Sawada, on 22.10.2005. It was, however, dishonoured. A demand notice was served on the Respondent, yet, the amount was not paid. Consequently, the private complaint case bearing SCC No.1951/2005 was instituted. 4. Consequent upon, on appreciation of material placed on record, the learned Magistrate acquitted the Respondent on both the private complaint cases. 5. Heard learned counsel for the parties. 6. The first transaction which culminated in filing of private complaint case bearing SCC No.1951/2005 is said to be of Rs.3,50,000/- (Rupees three lacs fifty thousand) on 9.1.1984. He had not repaid that amount as agreed within a period of two (2) months as promised. If it was so, the question is whether the applicant/complainant could have again trusted the words of the Respondent when the second transaction of Rs.1,00,000/- (Rupees one lac) was 5 entered into on 3.1.2005. Ordinarily, unless the first loan amount is cleared and unless there is continuance of the trust, it is difficult to believe that again further amount of Rs. 1,00,000/- (Rupees one lac) would have been given on 3.1.2005 to the Respondent. It is of common knowledge that once the fiduciary relationship is in turmoil due to the conduct of a party then it is difficult to repair the cracks in the relationship. There is no tangible explanation as to why the applicant again trusted words of the Respondent and gave the said amount on 3.1.2005 to him. 7. The learned Judicial Magistrate noticed that there was no independent documentary evidence produced on record to support the contention that the amounts were lent as claimed by the applicant. First, the applicant is an agriculturist, whereas the Respondent is a trading firm. The case of the applicant was that he withdrew the amount on both the occasions from Sawada Urban Cooperative Credit Society, in order to make such payments to the Respondent. The 6 relevant withdrawals from the said Cooperative Credit Society were not proved by producing necessary record of the Credit account. Secondly, it is difficult to believe that the applicant obtained loan amounts on interest and gave hand loan to the Respondent without interest. The learned Judicial Magistrate, further noticed that there were discrepancies in the testimony of the applicant and his contentions in the context of the transactions. He narrated that he maintained notes of transactions. However, the relevant notes were not produced on record. He stated that after 3.1.2005, he had no other transactions with the Respondent. However, next transaction shown in SCC No.1951/2005 is dated 18.10.2005. In both the cases, the cheques were issued by the Respondent as per allegation of the applicant/complainant on 20.10.2005. Cross-examination of the applicant indicated that on 20.10.2005, he was having three cheques issued by the Respondent. It was the case of the Respondent that he had obtained certain loan from the applicant in 2001 and had issued four (4) blank cheques. The learned 7 Magistrate also noticed that the applicant unequivocally admitted that in all an amount of Rs.8,50,000/- (Rupees eight lacs fifty thousand) was given by him to the Respondent. Obviously, he referred to other two transactions about which details were not given. The signature of the Respondent's partner on the cheques were in different ink than the body writing thereof. It was the contention of the Respondent that the blank cheques were misused by putting the figures and other part of the body writing. The cheques in question bears stamp below signature of the Respondent R.G.Lohar as "R.G.Lohar and Sons, Partner". Considering this aspect, the learned Magistrate came to the conclusion that the cheques were issued in capacity of the Respondent's partner and not by R.G.Lohar in his individual capacity. It was not the case of the applicant that he had given the amounts to the partnership firm nor he made any attempt to call for the accounts of the Respondent's partnership firm. The admissions of the applicant did show that he has no personal knowledge whether the Respondent is a proprietary firm or partnership 8 firm. He does not know who are the partners of that firm. In view of several deficiencies noticed by the learned Magistrate in the evidence tendered by the applicant/complainant, the learned Magistrate came to the conclusion that there was no sufficient proof to infer that the cheques were issued in order to discharge the existing liability. There appears no substantial error or patent error committed by the learned Magistrate. Consequently, the leave is refused and the appeals are dismissed. (V.R.KINGAONKAR,J.) asp/office/Crapp109309