1 wp5482-09 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5482 OF 2009 Sanjay Laxmikant Rangole .. Applicant Versus Mrs. Nita Girian Khatri & another .. Respondents Mr. Prashant D. Patil for the applicant Mr. D. R. More, APP for the State. CORAM : N. D. DESHPANDE, J. DATE : 31 st March, 2011 P. C. 1. Heard learned counsel for the applicant who is complainant in original complaint case filed by him under Section 138 of the N.I. Act against the respondent-accused who came to be acquitted by the impugned judgment and order passed by the learned Judicial Magistrate, First Class dated 23rd September, 2009 in Summary Criminal Case No. 6150 of 2004. The said criminal case involves the cheques, particulars of which are given as follows: Cheque No. Date Amount Rs. 5414 20/4/2004 50,000/- 5415 22/4/2004 50,000/- 5416 24/4/2004 32,910/- Total 1,32,910/- 2 wp5482-09 2. The above cheques were issued by the accused who was an agent of Suman Garment Pvt. Ltd., situated at Vita Dist. Sangli. The accused admitted to have issued these cheques and her case is stated in para 9 of the impugned judgment, which reads thus: It is the defence of accused, that, there was no hand loan or any commercial transaction between her and complaint. According to the accused she was agent of Summon Garments Pvt. Ltd. Situated at village Vita, Dist.Sangli. Complaint’s Savita Mohire also joined the said scheme and become agent in the month of June, 2003. In the month of December, 2003, Suman Garments Pvt. Ltd. Company had closed down and accordingly scheme h ad failed. Assuman Garments Pvt. Ltd. Had closed down, complainant and his sister started demanding amount from the accused which were deposited with the company by the members The accused further submitted that, in the last week of February, 2004 complainant and his sister visited the house of the accused along with seven eight persons and started demanding money from the accused and also threatened the accused, her husband and her children. Accused informed complainant that, she did not possess any account. Thereafter on 28.2.2004 accused was forcibly made to open a saving account in Nashik Zilla Girana Sahakari Bank Ltd. and on the same day cheque book was obtained and on very same day i.e. On 28/2/2004 two cheques bearing No. 5411 and 5412 were obtained by the sister of complainant. Thereafter on 3/3/2004 again complainant and his sister Savita visited the house of accused along with two to three persons and obtained four cheques bearing No. 5413 to 5416 by threatening and pressuring the accused. Cheque bearing 3 wp5482-09 No. 5417 was also obtained from the accused. Complainant forcibly obtained blank signed cheques from the accused. The complainant also obtained signature of accused forcibly on so called statement of account dated 3/3/2004 which is at Exh.56. Therefore defence of accused is that, there was no debt and liability and no transaction of hand loan or any commercial transaction with complainant but as the scheme had failed and the amount of the investors were not returned to them by Suman Garments Pvt. Ltd. Complainant forcibly obtained the blank singed cheques from the accused and hence when the accused received the statutory notice from the complainant, she had issued notice reply which is at Exh. 50 to the complainant and by letter dated 15/4/2004 (Exh. 58) she had instructed her bank i.e. Nashik Zillha Girana Sahakari Bank Ltd., Branch Trimurti Chowk to stop the payment of disputed cheques and on 16/4/2004 filed written complaint which is at Exh.66 to Ambad Police station against the complainant and her sister Savita Mohire. 3. Perused the impugned judgment and order and discussion made by the trial Court on the relevant point. It is seen that the entire evidence of both the parties has been taken into consideration. In a case under section 138 of the N.I. Act which is a complaint, the complainant should state about existing liability which is due and recoverable and cheque which was bounced was for the payment in whole or in part of any debt or other such liability. Once it is so established or found, then presumption under section 139 is in favour of the holder in due course which would make his 4 wp5482-09 way clear for an appropriate proceeding against the accused who did not bother to care for the payment of amount of bounced cheque which was demanded by a demand notice required to be issued as per the law. In the present case, what is seen in para 1 of the complaint at page 20 is about the existing liability and the rest of the complaint speaks about other details i.e. presentation of cheques, issuance of notice etc. The relevant para-1 is reproduced as under: “fQ;kZnhps o vkjksihps njE;ku >kysY;k vkfFkZd O;ogkjkuqlkj fQ;kZnhl vkjksihdMqu oS;fDrd ?ks.;kiksVh #i;s 1]32]910@& bzrdh jDde vkgs- lnjpk vkfFkZd O;ogkj fQ;kZnh o vkjksih ;kapk O;S;fDrd O;ogkjk gksrk- R;keqGs fQ;kZnjhl vkjksihdMqu lnjph jDde oS;fDrd ?ks.;kiksVh vkgs-” 4. Except these vague averments nothing is stated about what was the transaction when such amount was payable and due. On these four lines averments, the complainant has based his claim holding the accused responsible for non payment of the amount of three bounced cheques only because there is presumption under section 139 in favour of the holder in due course. In my opinion, these 3/4 lines averment which is a case, not admitted by the accused respondent and in the light of the explanation averred in defence, no case was made out by the complainant and the same has been rightly dismissed by the trial Court. 5. It is further seen that whenever summons is served on 5 wp5482-09 the accused for giving appearance in a complaint case registered under section 138 of the N.I. Act, as per provisions under Section 215 of the Cr. P. C., she has right to make statement in defence when particulars of the offence have been stated to her and she has been asked whether she pleads guilty or has any defence to make. In such case, the accused can state her defence in reply to the demand notice so also when she pleads no guilty in reply to the particulars of accusations being stated to her upon giving appearance before the Court who issued issue such summons. I fully agree with the observations made by the Trial Court that the complainant has utterly failed to make out a case of legally enforceable liability. 6. Many clandestine transactions are being taken place every day and enforced by securing or procuring cheques. Enforcing such liability which otherwise was not legally entitled. In the present case, it appears to be one of such liability as seen from the defence of the accused which has been upheld after giving full opportunity to the complainant for which there is no grievance. Hence no case is made out . Leave refused. ( N. D. DESHPANDE, J. )