IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 3 CRIMINAL APPLICATION NO. 1883 OF 2011 DR. BABASAHEB AMBEDKAR NAGARI SAHAKARI BANK LTD. VERSUS RAJENDRA CHANDMAL MUTHA AND ANR ... Advocate for Petitioners : Mr. Kudale Bhagwan S. Adv Mr. Gholap Ajit M for R-1 APP for Respondents: Mrs. Y.M.Kshirsagar R-2. ... CORAM : SHRIHARI P. DAVARE, J. Dated: December 20, 2011 ... PER COURT :- 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant/original complainant seeking leave to file appeal challenging the judgment and order of acquittal dated 5.3.2011, thereby acquitting the respondent/accused for the offence p/u/s 138 of Negotiable Instruments Act. [Parties hereinafter are referred to as per their original status i.e. ‘complainant’ and ‘accused’.] 3. Factual matrix of the case is as under :- The complainant claims to be a co-operative Bank registered under Maharashtra Co-operative Societies Act and object of the society is providing loan facility to the needy persons. Accused is member of the complainant society. Accused was in need of money for his business and therefore, aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD he approached the complainant for seeking loan. Accordingly, complainant sanctioned loan to the accused and accused executed several documents in favour of the complainant in respect of the said loan. However, it is alleged that, the accused did not stick up to the scheduled repayment of the said loan. Hence, the complainant demanded loan amount from the accused from time to time. Thereupon, the accused issued a cheque no.13245 for Rs.2,68,918/- dated 22.3.2004 drawn on Peoples Cooperative Bank Limited, Hingoli branch Aurangabad in favour of the complainant. The complainant presented presented said cheque for encashment purpose on 24.3.2004. However, said cheque was dishonoured and returned unpaid alongwith cheque return memo dated 24.3.2004 with the endorsement ‘insufficient funds’. Hence, the complainant issued statutory demand notice to the accused through Advocate on 31.3.2004 by RPAD and called upon the accused to make the payment of the said cheque within 15 days from the receipt thereof. It is the contention of the comnplainant that said notice was served to the accused on the correct address. However, inspite of keeping intimation by postman accused did not claim said notice. Hence, it is the contention of the complainant that said notice was deemed tobe served upon the accused as per section 27 of the General Clauses Act. Thereafter, inspite of lapse of 15 days, the accused failed to make the payment of the said cheque amount. Hence, the complainant filed complaint aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD against accused. 4. After recording verification of the complainant, process came to be issued against the accused under section 138 of Negotiable Instruments Act. Accused appeared in the said case and his plea was recorded and he pleaded not guilty. To substantiate the case, the complainant examined two witnesses i.e. complainant himself i.e. Rahul Kotkar CW 1 and Anil Birare CW 2 where as accused neither examined himself nor examined any defence witness. After considering the oral and documentary evidence adduced/produced by the complainant as well as after considering rival submissions, advanced by learned counsel for the parties, learned trial court acquitted the accused for the offence p/u/s 138 of N.I.Act. Hence, being aggrieved and dis-satisfied by said judgment and order of acquittal, the complainant has preferred present application seeking leave to file appeal. 5. Considering oral as well as documentary evidence adduced/produced by the complainant including resolution Exh.47, loan application exh.48, promissory note exh.49, agreement exh.50, disputed cheque in question exh.55, cheque return memo exh.28, copy of the legal notice dated 31.3.2004 exh.62, registration receipt exh.63 thereof, registered returned envelope with the endorsement unclaimed exh.61, sanction letter dated 14.2.2000, statement of account aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD exh.34, it is apparent that initial presumption is in favour of the complainant that the accused issued disputed cheque in question to the complainant towards discharge of liability of debt. However, said presumption is rebutable since presumption under section 139 of N.I. Act is reversible and accused is required to rebut said presumption on the test of preponderance of probability. 6. In the said context, it is apparent that specific defence of the accused is that at the time of grant of loan by the complainant bank, said bank obtained blank cheques from him towards security. Admittedly, the accused has neither examined himself nor examined any defence witness to substantiate said defence however, it is seen that the accused has put forth said defence to the complainant and his witnesses through cross examination as well as through his statement recorded under section 313 of Code of Criminal Procedure. In the said context, it is material to note cross examination of CW 1 Rahul Kotkar wherein suggestion were given to him that the contents of the disputed cheque in question were in different hand writing and were returned on different dates by different person, but same was denied by him. It was also suggested to him that, disputed cheque in question was issued by the accused to the complainant towards security and same was misused by the complainant bank but same also was denied by him. It was further aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD suggested to him that the contents of the said cheque were not written by the accused, but same also was denied by him. Pertinently, CW 1 admitted in the cross examination that besides the disputed cheque in question, the accused has issued other cheques also to the complainant bank. Hence, statement of account exh.34 was confronted to him, but he could not state the entries of the said cheques therein. He also admitted that there is no reference of the cheque dated 22.3.2004. 7. Coming to the statement of the accused u/s 313 of Code of Criminal Procedure, he has categorically stated therein that, the complainant bank had obtained two blank cheques from the accused at the time of grant of loan and the complainant bank has misused said cheques and filed false case against the accused. He also stated that the date, amount and other contents of the said cheques does not bear in his hand writing. He further stated that he was not liable to pay the said very amount on the date when the said cheque was dishonoured. He has further stated that there is difference in the rate of interest. 8. Having comprehensive view of the cross examination of CW 1 Rahul and statement of the accused recorded under section 313 of Cr.P.C. and the very admission given by CW 1 that accused has issued other cheques to the aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD complainant bank besides the disputed cheque in question, it is apparent that, the accused has proved and established his defence on preponderance of probability, since it appears that said defence is probable. 9. In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt on the date of issuance of cheque and accused issued disputed cheque in question towards discharge of legally enforceable debt/liability, partly or in whole. In the said context, admittedly, the disputed cheque in question was for Rs. 2,68,918/- and the date of the cheque is 22.3.2004. Keeping in mind said amount and date and coming to the account extract Exh.34 which discloses that amount outstanding in the account of the accused on 28.2.2004 is 2,64,293/- and amount outstanding in the said account on 31.3.2004 is 2,68,918/-. Hence, it is apparent that, disputed cheque in question dated 22.3.2004 bears the amount Rs.2,68,918/- i.e. amount outstanding on 31.3.2004 and not the amount outstanding on 22.3.2004. Hence, it is apparently clear that the amount of Rs.2,68,918/- was not outstanding on 22.3.2004 i.e. on the date of issuance of disputed cheque in question, which leads to the position that disputed cheque in question was not issued towards the discharge of legally enforceable debt/liability on 22.3.2004, partly or in whole. aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 10. Apart from that, there are discrepancies in respect of the rate of interest since the loan document i.e. agreement and promissory note discloses 21% p.a. rate of interest chargeable at quarterly rests, whereas sanction letter dated 14.2.2000 discloses rate of interest @ 18% p.a. Learned trial court has also observed that although said interest was chargeable at quarterly rests, some times it is charged at monthly rests. Learned trial court also observed that there are discrepancies in the account extract in respect of the application of the said interest and out standing amount therein. 11. In the circumstances, after scrutinizing and assessing evidence on record, the view adopted by the learned trial court, while acquitting the accused is a possible view, and apparently, same does not appear to be perverse. Therefore, no interference therein is called for in the appellate jurisdiction. Hence, present application deserves to be rejected. 12. In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) ... aaa/-