1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.787 OF 1998. Anil Sekhri, adult, Bombay inhabitant residing at 24-A, Krishna Kunj Opp. Millat Nagar, Off. New Link Road, Andheri (West) Mumbai 400 053. Appellant-original complainant Versus 1. J. B. Singh, Chandra Village, Malvani Church, Chikuwadi Road, Marve Road, Malad (West) Mumbai 400 095. 2. The State of Maharashtra. ..Respondent Nos.1 and 2. Shri B.B. Gupta, Advocate for the Appellant. Mr S.M. Khaire, Advocate with Ms Mallika A. Ingle for Respondent No.1. Mr D.P. Adsule, A.P.P., for the State. 2 CORAM: A.R.JOSHI,J. DATE : 15TH June,2009. ORAL JUDGMENT. 1. The present appeal is preferred by the appellant  original complainant, a Chartered Accountant by profession, against the impugned judgment and order dated 27.3.1988, passed in Criminal Case No. 205/S/1996, whereby the Metropolitan Magistrate, 44th Court, Andheri, Mumbai acquitted respondent no.1  original accused from the charge for the offences punishable under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881( the N.I. Act for short). 2. Being aggrieved by the impugned judgment and order, along with leave petition an appeal was preferred before this Court. Leave was granted and the appeal was admitted. On previous dates rival arguments were heard at length. Today also arguments were heard and the citations relied on by respondent no.1  original accused are perused. 3 3. Prior to discussing the rival submissions and arguments it would be profitable to have rather details regarding the case of the complainant-appellant and regarding details of the material brought before the Trial Magistrate and as to the substantive evidence of three witnesses examined on behalf of the complainant. At this juncture, it must be mentioned that respondent no.1 -original accused did not enter into the witness box to give any substantive evidence. So also, he did not examine any witness in support of his defence. As such only on the substantive evidence and the material brought before the Trial Magistrate s Court on behalf of the complainant, the impugned judgment and order of acquittal came to be passed. 4. For all the practical purposes, it can be ascertained that some time in the year 1994, the complainant appellant had bought a plot of land from respondent no.1  accused. However, there was a raid by the Income-tax Authority on the respondent no.1-accused on 31.3.1995. Prior there were no any relations between the complainant and the accused as to Chartered Accountant and the client. Such relations were developed since the time of the said raid till Diwali of the same year 1995. According to the 4 complainant, he had given a loan of Rs. 10 lacs to the accused on 2.8.1995 by way of cheque and such amount was shown transferred in the account of accused as the complainant and the accused, both were having their respective accounts in the same bank i.e. Bombay Mercantile Co-operative Bank Ltd, Versova Branch. According to the complainant, the said loan was given on the premise that the accused will repay the same along with interest and the total repayment amount was fixed at Rs. 12.50 lacs. According to the complainant, on the same day of giving the cheque for Rs. 10 lacs to the accused i.e., on 2.8.1995, writing was effected by the accused acknowledging the receipt of loan amount of Rs. 10 lacs by cheque No. 77000 drawn on Bombay Mercantile Cooperative Bank Ltd. Signature on the said receipt is on the revenue stamp and the said receipt is apparently in the form of the letter head of the accused having his full address. According to the complainant, after giving such loan, as there was no repayment, there were talks held between the parties somewhere in the month of January, 1996 and on 31st January, 1996 a detail letter came to be sent by the accused again purported to be on the letter head of the accused and addressed to the complainant. Such letter which is Exh.P-2 giving detail cheque numbers 5 and post dated dates of seven cheques, first six cheques each of the value of Rs. 2 lacs and last cheque for Rs. 50,000/-. Thus, totaling the amount of Rs. 12.50 lacs. Here at this juncture, the entire wording of the said letter can be reproduced with advantage, this is more so, in order to appreciate the rival arguments and also the arguments advanced on behalf of the accused. Moreover, such contents are necessary to be mentioned in order to appreciate the observations and reasonings given by the Trial Magistrate while believing the defence of the accused and disbelieving the case of the complainant. Such writing dated 31.1.1996 is as under: You had advanced a loan of Rs. 10 lacs to myself by cheque No. 77000 drawn on Bombay Mercantile Co-op. Bank Ltd dt. 2.8.1995. I hereby confirm to return the same to you together with interest amounting to Rs. 2.5 lacs as per the instalments mentioned below. I am enclosing herewith post dated cheques for returning the loan amount together with interest. I promise to honour these cheques on the due dates mentioned hereinbelow and I understand that in case I fail to honour these cheques, I shall be liable for consequences u/s. 138 of the Negotiable Instruments Act . 5. So far as the present appeal is concerned and so far as the lodging of the case before the Trial Magistrate is concerned what is relevant out of the seven cheques is 6 dishonour of first three cheques each for amount of Rs. 2,00,000/- and respectively dated 20.3.1996, 20.4.1996 and 20.5.1996, having respective cheque Nos. 061869, 061870 and 061871. The said cheques upon presentation were dishonoured on the ground of insufficient funds. Consequently, a demand notice was issued to the accused vide Exh.P-5 on 8.6.1996. The said notice was replied on behalf of the accused through Advocate vide reply dated 21.6.1996 stating manifold defences and mainly defence as to not taking loan from the complainant and not issuing any such cheques, as alleged for repayment of such loan and as such not having liability to pay. It is also the defence spelt out in the said reply itself and also during the course of trial before the learned Trial Court that the complainant being the Chartered Accountant of the accused was given various documents for income-tax purposes including the slip books, cheque books and also the blank cheque books. In fact, it is the specific defence that by making use of such blank cheque books, having signatures of the accused on such cheques, the complainant misused the authority and the trust reposed on him and fabricated a false concocted case and also fabricated the acknowledgment receipts, letter Exh.P-2 showing the details as to the transaction of loan and as 7 to preparation of various post dated cheques. It is also the defence of the accused that there was no meeting or discussion held at any time or even in the month of January, 1996, as alleged, as there was no any giving of loan of Rs. 10 lacs and as such there was no question of giving any cheques to the complainant for repayment of the loan along with interest, further argued. During the arguments, before this Court in the appeal, it is also strongly submitted that there was no legally enforceable debt if at all giving of such loan to the accused is accepted. This is more so, when according to his own admission, the complainant had given loans to his various clients and that also on the rate of interest between 24 to 26%; and admittedly such giving of loan was without having any money-lending license. Various authorities are cited before this Court on behalf of the accused  respondent no.1 as under: 1. M/s Baba Finance Corporation v. Mohd. Nayeem and Anr 1997 ALL MR (Cri) 1. 2. M/s Krishnam Raju Finances, Hyderabad vs. Abida Sultana and Anr, 2004 ALL MR (Cri) 131 3. Mohan Lal vs. Haji Shaikh Bashir 2008 (2) Crimes 614 (Bom). 8 4. B. Mohan Kirishna, v. Union of India & Ors, 1996 Cri.L.J. 636. 6. Apart from the above, it is also the defence of the respondent no.1 - accused that the said cheque dated 2.8.1995 purported to have been given by the complainant to the accused was presented in the bank account of Respondent no.1 by the complainant himself, having much influence with bank officers being a Chartered Accountant and by taking advantage that the complainant and the accused had accounts in the same branch and also by taking advantage that such account of the accused in Bombay Mercantile Co-operative Bank was asked to be opened by the accused on instructions of the complainant. According to respondent No.1  accused on deposit of such cheque in his account, the complainant withdrawn the same amount by giving the cheque from the account of the accused, by giving self paid cheque and having the signature of the accused on the said cheque, on the front as well as on the back. The said cheque is Exh.P-12 in the matter. It can be specifically seen that the said cheque does bear the signature of the accused on the face of it and also reverse and such signatures are admitted by the accused on the premise that he had given blank cheques with his 9 signatures on the cheques. What is significant, so far as this cheque Exh.P-12 is concerned it does bear the signature of the accused even on the reverse. If defence of the accused has to be considered as probable then it has to be accepted that such cheque in blank was given by the accused with his signatures on the front and also on the reverse. Such defence of the accused is to be tested on preponderance of probability and considering that he is a business man and dealing in the sale and purchase of the lands and having huge turnover. It is also the defence on behalf of the Respondent no.1-accused that the said amount of Rs. 10 lacs was withdrawn in cash by one Ishwar Bhardwaj P.W.No.3 and it was allegedly on the asking and at the instance of the complainant. On this aspect, the substantive evidence of P.W.3 Ishwar Bhardwaj is very significant and speaks to the effect that the said amount was withdrawn by him at the instance of respondent no.1 accused and was given to him. When such specific evidence was brought before the Court on behalf of the complainant, it was must on the part of the accused to rebut the same by cognate evidence either by entering himself in the witness box and/or by examining any witness on his behalf. Respondent no.1  accused has not chosen either of the ways and remained quiet and only filed his written 10 submission which is annexed to his statement recorded under section 313 of Cr.P.C. It is the factual position and even admitted by the rival parties that an amount of Rs. 10 lacs was withdrawn by Ishwar Bhardwaj by way of account payee cheque and said cheque was definitely from the account of Respondent no.1 accused maintained with the Bombay Mercantile Co-operative Bank and said cheque having the signature of respondent no.1 accused on the face and also on the reverse and also bears the signature of Ishwar Bhardwaj P.W.No.3 appearing on the reverse of the cheque. It is also admitted position that said Ishwar Bhardwaj was the employee of the complainant, C.A., during the relevant period. Apart from the above, so far as the dishonoured cheques are concerned, it is a factual admitted position that said cheques bear the signatures of respondent no.1 accused. However, all the contents of the said cheques were written by the complainant. According to the complainant, this was done on instructions and by consent of Respondent no.1 accused and for this there was a talk at the office of the complainant when such post dated cheques were issued by respondent no.1 to the complainant. It is also an admitted position and which is in fact crucial so far as the matter of dishonour of cheques and so far as offence under Section 138 of the N.I., Act is 11 concerned, that writing i.e.,receipt acknowledging loan of Rs. 10 lacs dated 2.8.1995 and the writing giving details of the post dated cheque again acknowledging the same liability dated 31.1.1996 were accepted by respondent no. 1  accused as bearing his signatures. Only the defence on this count is that he had no knowledge regarding the contents of the said letters and had signed on the same when such papers were blank, believing the relationship of the complainant and the accused as C.A.,and the client. It appears that the Trial Magistrate has placed much emphasis and in fact accepted such defence of the accused that accused was made to sign on various blank papers so as to suitably use by the complainant for income-tax purposes. On this aspect, the reasoning given by the Trial Magistrate is required to be examined. It is accepted by the Trial Magistrate that respondent no.1 accused not knowing English language had simply signed on various such blank papers and also gave the cheques in blank with his signatures. Without there being any corroboration, at least on preponderance of probability by way of any oral or documentary evidence on behalf of respondent no.1 accused, in the opinion of this Court, such reasoning given by the Trial Court is perverse and cannot be accepted. This is mainly on the count that respondent no. 12 1 accused is definitely a well versed business man dealing with immovable land property and knowing the consequences of his actions of giving signatures on various blank papers and also on the cheques and also at one occasion even at the reverse of the cheque. This conduct of the accused for want of any other material in support of his case, goes to show that defence of the accused is not acceptable even on preponderance of probability and on that count it must be said that learned Trial Magistrate has fallen in an error in accepting such defence ignoring the provisions and presumption envisaged by Sections 118 and 139 of the N.I. Act. 7. Again, the defence canvassed on behalf of the accused that the amount of Rs. 10 lacs withdrawn by cheque was at the instance of the complainant by his own employee cannot be accepted. It is an admitted position that the said amount was withdrawn by Ishwar Bhardwaj. This is, more so, in view of specific substantive evidence of P.W.3 Ishwar Bhardwaj and nothing brought on record by the accused to counter such evidence. 8. Regarding the defence, as to the factual admitted position of filling of the contents of the cheque by the 13 complainant, respondent s case cannot be accepted as the signatures on such cheques has been accepted by respondent no.1 accused and when his defence as to he giving blank signed cheques to the complainant has not been accepted by this Court. In other words, it must be said that if it is still considered that such blank cheques were given by the accused by putting his signatures on the cheques to the complainant then definitely he incurred the risk for the actions at the hands of the complainant, so far as the writing the other material contents of the cheque when allegedly such cheques were given by respondent no.1 accused and were filled by the complainant in his own office in the personal meeting between the parties. This case of the complainant is further fortified by the factual position as to showing of two more unsigned cheques each for Rs. 12,50,000/- and respectively having the dates 31.3.1996 and 30.9.1996. 9. It is significant to note that these two cheques came on record only during the cross examination of the complainant P.W.1 and said cheques came from the custody of the accused. On inspection of such cheques it is evident that they do not bear the signatures of the 14 accused. However, as per the answer given by the complainant during his cross-examination contents of the such cheques were written by him during the negotiations and at the instance of the accused. If the case of the accused as to not entering into any such negotiations and not giving of any such cheques and not giving any authority to the complainant to write out details on the cheques, then there was no occasion for the accused to know as to the existence of such cheques which are Exh.P-7. Inspite of such factual position it is admitted that such cheques were produced by the accused from his own custody and they were confronted to the complainant during the cross-examination and answers were obtained as to said cheques not bearing any signatures of the accused. However, writings were done by the complainant himself. When it was brought to the notice of the learned Advocate Mrs Ingle for the accused, as to what is the explanation for the accused having the custody of said cheques when it is his specific defence that there were no any such negotiations and in fact no such transaction of money and even giving of any post dated cheques. While answering to such query made by the Court an attempt has been made to show that the office of the complainant was raided by the local police when a complaint for offence punishable under 15 Section 420 of the I.P.C.,came to be filed by the Respondent no.1-accused against the present complainant and during such raid various documents including such cheques came in the custody of the police and probably such cheques might have been given to respondent no.1 accused by the police. By any stretch of imagination such explanation cannot be accepted or otherwise it is required to be accepted that during investigation of any offence whatever material is seized by the police machinery is given to the complainant party without there being any record to that effect. It is admitted position that there is nothing either oral or documentary evidence produced before the trial Magistrate as to how the accused could lay his hands over such two cheques and as such consequently the very defence of the accused as to not having any such discussion and negotiations and preparation of such cheques stands demolished. 10. Again, on the above aspect it is to be examined whether the Trial Magistrate was justified in coming to the conclusion and raising the doubts on the specific wordings of the writing Exh P-2 as specifically detailed herein above in order to have ready reference. The Trial Magistrate has expressed his doubt as to appearance of 16 specific wordings in the said writing regarding the liability of consequences made known to the accused for the offences punishable under Section 138 of the N.I. Act. By raising doubt as to why such type of mentioning would appear in such writing of Exh-2? the Trial Magistrate had labelled the said writing as false and fabricated and consequently held the defence of the accused as trustworthy, without there being any oral or documentary evidence on record on behalf of the accused. 11. On the defence as to the complainant allegedly not proving the existence of legally enforceable liability beyond reasonable doubt, apart from the earlier referred four authorities, more authorities are cited on behalf of respondent no.1-accused. 1. Rajendra Gangabishen Porwal vs. Mr Santoshkumar Parasmal Saklecha and Anr 2008 ALL MR (Cri) 1066 2. Shri Nelson D costa vs. N.M. Langrana 2009 ALL MR (Cri)1074. 12. Again, alleging that there is failure on the part of the complainant to show that the amount of Rs. 10 lacs withdrawn from the account of the accused were handed over to the accused following authority is cited before 17 this Court. Bank of Bihar v. Mahabir Lal and others A.I.R. 1964 S C 377. 13. On this aspect it must be said that part of burden placed on the complainant has been sufficiently discharged by the complainant by examining P.W.3 Ishwar Bhardwaj. At the cost of repetition, it must be said that P.W.3 had specifically mentioned that such amount was withdrawn at the instance and was given to respondent no. 1-accused and there is no contradicting evidence brought by the accused except putting suggestion to P.W.3 Ishwar Bhardwaj. 14. It is also argued during the present appeal that if two possible views are available, the Appellate Court shall not reverse the judgment of acquittal only because another view is possible. In order to substantiate this argument, the following authority is cited before this Court. K. Prakashan vs. P. K. Surenderan 2008 (2) Mh.L.M. 771. 15. In the opinion of this Court, considering the rival submissions and considering material brought before 18 the Trial Magistrate, here it is a case in which there were no two possible views available but there was only one view which could have been taken by the Trial Magistrate as to proof of the guilt of the accused for the offence punishable under Sections 138 and 141 of the N.I. Act. In fact, as detailed herein above, it must be said that the Trial Magistrate has erroneously came to the conclusion of non establishment of the offence and which has resulted in the miscarriage of justice and which is required to be cured in the present appeal. 16. So far as the earlier mentioned defence on behalf of the respondent no.1 accused as to there was no money lending license with the complainant for his business of money lending to various persons, it must be said that it is a substantive evidence of P.W.1 complainant that on some occasions he had lent money to his clients and not to the public at large and that also on certain rate of interest then prevailing in the market. In the opinion of this Court for such occasional grant of advances the provisions of the Money Lending Act cannot be attracted and as such the argument on that count must fail. 17. Before parting with the present appeal, it must be mentioned that admittedly the complaint for the 19 offences punishable under section 138 of the N.I. Act was preferred by the complainant on 10th July, 1996. Whereas the criminal case for the offence under Section 420 of the I.P.C.,was filed by Respondent no.1  accused against the present complainant on 2.9.1996 i.e.,much after one and half month and reportedly such complaint is still pending. It may also be mentioned that the present Respondent no.1  accused had made a complaint much belatedly even after the disposal of the complaint under Section 138 of the N.I.Act. In view of the Institute of Chartered Accountants. Such complaint was filed on 4.3.2000 and reportedly it was dismissed by the Institute on 5th November, 2003 exonerating the present appellant complainant from all the allegations levelled against him for his alleged professional misconduct. 18. All the same, in the opinion of this Court, there is definitely an error committed by the Trial Magistrate in acquitting the accused  respondent no.1 considering the material brought before him and mainly as to the acceptance of the writings acknowledging the indebtedness and considering that there was no any oral or documentary evidence in rebuttal produced by the accused to counter the case of the complainant. 20 19. In view of the above, it is warranted that within the powers of the Appellate jurisdiction for the appeals against the acquittals the error committed by the Trial Magistrate is required to be cured and the impugned judgment and order is required to be set aside and to be substituted by the following order holding that respondent no.1 accused had committed the offence punishable under Sections 138 r.w.s. 141 of the N.I. Act. 20. Again, prior to parting with the appeal, it must be mentioned that the dishonoured cheques which were totally