[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.606 OF 2007 IN CRI.APPEAL NO. OF 2007 Shri.Ramdas Hanumant Palankar ..Applicant Vs. Shri.N.D.Vernekar and Anr. ..Respondents ... Mr. Sandesh Patil Adv. for Applicant Mr. Y.S.Shinde APP for State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 10, 2008 DATE : JUNE 10, 2008 DATE : JUNE 10, 2008 P.C. P.C. P.C. 1. The applicant-complainant has preferred this application for leave to file an appeal against the judgment and order dated 20.1.2007 passed by the learned 6th Judicial Magistrate, F.C. Thane in Summary Case No. 3737 of 2004. By the said judgment and order, the learned Magistrate acquitted the Respondent No.1-accused of the offence under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that in October, 2003 the accused requested the complainant for loan of Rs.2 lakhs. The complainant paid the amount of [-2-] Rs.2 lakhs in cash. Thereafter, the accused issued a cheque in respect of the said loan. The said cheque was dishonoured. Hence, complaint came to be filed. 3. I have heard the learned advocate for the applicant-complainant. I have perused the impugned judgment and order as well as the evidence. 4. The defence of the accused is that he had never obtained loan of Rs.2 lakhs in October, 2003 but the loan was taken by Mr.Devanand from the complainant and the disputed cheque was obtained by the complainant from the accused as a security for the loan amount taken by Mr.Devanand. As Mr.Devanand failed to repay the amount and went to his native place, in order to take revenge, complainant deposited the cheque issued by the accused. 5. From the evidence on record, it is clear that complainant did not have the capacity to advance loan of Rs.2 lakhs in cash at the relevant time. The complainant has admitted that his annual turnover was Rs.75,000/-. However, thereafter the [-3-] complainant has stated that he used to give business of Rs.4 lakhs to accused every month. Complainant then stated that his annual turnover was not more than Rs.75,000/- however still he was in a position to give business of Rs.4 lakhs to the accused every month. Moreover, if his turnover was Rs.75,000/- per year, the complainant would not have been in a position to advance Rs.2 lakhs in cash to the accused. The complainant has admitted that other than the disputed cheque, he does not have any proof to show that he had advanced an amount of Rs.2 lakhs in cash as a loan to the accused. 6. Though the complainant is income tax assessee, no returns of income-tax, sales tax book of accounts have been produced by him to show that he had capacity to advance an amount of Rs.2 lakhs in cash and that he had indeed advanced such an amount to the accused. Useful reference may be made to the decision of this Court in the case of Vasudev Vasudev Vasudev Ramchand Ahuja Vs. Vilas Shripati Kamble Ramchand Ahuja Vs. Vilas Shripati Kamble Ramchand Ahuja Vs. Vilas Shripati Kamble reported in 2006(2) Bombay C.R. (Cri.) 1, 2006(2) Bombay C.R. (Cri.) 1, 2006(2) Bombay C.R. (Cri.) 1, wherein it is observed as under: [-4-] . The observation seen by the trial Court that amount allegedly paid by complainant during period, has not been reflected in Income Tax Returns as well as in Books of Account. Reasons recorded by the Court below on appreciation of evidence on record, impugned judgment cannot be said to be unreasonable and perverse." 7. It is pertinent to note that it is the specific case of the complainant that he had advanced loan of Rs.2 lakhs in cash to the accused. The initial case of the complainant in his demand notice, original complaint and the evidence on affidavit is that amount of Rs.2 lakhs was advanced by him in cash and for the repayment of the said amount, the accused issued the disputed cheque. However, thereafter in his evidence, the complainant has stated that he did not pay cash amount to the accused but he handed over gold to the accused as a loan and for the repayment of the said loan, accused issued the cheque. Thus, the complainant [-5-] has made a completely contradictory statement to the initial statement made by him. The complainant has further confirmed that there was no cash transaction of Rs.2 lakhs towards loan between the accused and himself. The answers given by complainant about the nature of transaction are of vital importance. Right from the beginning, it was the specific case of the complainant that alleged amount was advanced in cash but, during the cross-examination complainant has changed his statement. Thus, this evidence damages the credibility of the complainant. 8. Mr.Patil has invited my attention to Exhibit-27 which is reply given by the accused to the notice issued by the complainant. Mr.Patil submitted that accused has taken loan of Rs.2 lakhs from the complainant which is borne out by reply (Exhibit-27) given by the accused. The reply does show that the accused received a sum of Rs.2 lakhs, however, the reply states that the said amount was received in December, 1999 and not in the month of October, 2003. The case of the complainant in respect of disputed cheque is that the cheque was given in respect of loan taken by accused in [-6-] October, 2003. Thus, Exh.27 would be of no help to the complainant. 9. Mr.Patil further submitted that accused had given undertaking (Exhibit-30) to the trial Court that he will make payment to the complainant. True that there is such an undertaking on record but giving of such undertaking does not necessarily indicate that the accused had taken a loan of Rs.2 lakhs from the complainant and hence, he was liable to pay the same. There are various reasons to give such undertaking before this Court and it does not necessarily indicate the guilt of the person. The necessary ingredient under the Negotiable Instruments Act, is that the cheque should be given in respect of any legally enforceable debt or liability. From the record, it is seen that the cheque was not issued for any legally enforceable debt or liability and therefore, giving of such an undertaking by the accused would be of no help to the complainant. 10. The case of the accused is that he had never obtained loan of Rs.2 lakhs in October, 2003 but the loan was taken by Mr.Devanand from the [-7-] complainant and the disputed cheque was obtained by the complainant from the accused as a security for the loan amount taken by Mr.Devanand. As Mr.Devanand failed to repay the amount and went to his native place, in order to take revenge, complainant deposited the cheque issued by the accused. The complainant has outrightly denied about any knowledge of Mr.Devanand or that accused was acting as surety for the loan transaction between Mr.Devanand and the complainant. However, thereafter the complainant has admitted that he went to the residence of the accused and started abusing and threatening the accused and demanded the loan amount which was advanced by him to Mr.Devanand. This admission has weakened the case of the complainant because, according to him, he did not know Mr.Devanand at all, but thereafter, he admits that he had threatened and abused the accused and demanded the loan amount which was advanced by the complainant to Mr.Devanand. The credibility of the evidence of the complainant is severely affected due to this evidence. 11. It may also be noted that the complainant has admitted that a meeting had taken place between him [-8-] and the accused about his demand for money. Here it is pertinent to note that complainant has categorically stated that he knows Mr.Devanand for ten years and that Mr.Devanand was also present in the said meeting. Initially, the complainant has denied any knowledge of Mr.Devanand who is resident of the same society of the accused and he also belongs to the same community. However, the above admission made by the complainant regarding Mr.Devanand, shows that complainant had initially made completely a false statement about any knowledge of Mr.Devanand but subsequently the complainant admitted that he knew Mr.Devanand for last ten years. This admission is fatal to the case of the complainant as it severely affects his veracity. 12. The complainant was elaborately cross examined on the point of receiving Mortgage papers from the accused for loan taken by Mr.Devanand. The complainant denied any relationship between present transaction of Rs.2 lakhs and transaction of mortgage papers stating that these were two different and separate transactions. At this point, complainant has admitted for the first time [-9-] that accused had obtained a loan from him of Rs.5 lakhs in the year 2001 "relating to house mortgage." The said admission of the complainant is completely contradictory to the previous statement made by him where at paragraph 13 of cross examination of complainant, he has categorically admitted that there was no any cash transaction or loan transaction between accused and himself other than present disputed transaction. So logical inference can be drawn that complainant is making untrue statement about number of transactions as well as the loan of Rs. 2 lakhs. 12. Lastly, it is seen that when complainant was confronted with stamp paper bearing his signature, the complainant only admitted his signature on the said document (Exhibit-57). In relation to the said document, the complainant stated that he does not understand Marathi language and hence, he is not aware about the contents of the said document. However, as seen from the record, the entire cross-examination of the complainant was recorded in Marathi, all the case proceedings were also conducted in Marathi, the affidavit in evidence of the complainant was recorded in Marathi. In such [-10-] case, his statement that he does not understand Marathi language, clearly appears to be false. All these statements made by the complainant seriously affect his credit-worthiness. 13. Looking to the evidence on record and the admissions given by the complainant, there is sufficient evidence to discharge the burden upon the accused regarding presumption. On the other hand, the complainant has made a number of untrue statements. These admissions are sufficient to discharge burden imposed on the accused and to infer that the defence taken by the accused is reasonable. 14. The learned Magistrate after going through the evidence has observed, that the disputed cheque was not issued for a legally enforceable liability. Looking to the evidence, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. No interference is called for. Application for leave to file appeal, is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]