1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1008 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri B.S.Kudale, Advocate for the applicant. Shri Joydeep Chatterji Advocate for Respondent No.1. ----- 1. This is an application by original complainant-Bank for leave to file appeal against the order passed on 13.2.2009 by learned Judicial Magistrate, First Class (Court No.3) Aurangabad, in S.C.C. No.8885 of 2004, whereby he acquitted the respondent- accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. It is the case of the complainant that the respondent had taken loan for construction of house and towards repayment of the loan amount, he had 2 issued cheque for Rs.1,26,450/= which is dated 28.9.2004 drawn on Deogiri Nagari Cooperative Bank, Cidco Branch. When the said cheque was presented for encashment, it was dishonoured on 29.9.2004 and, therefore, notice was issued by the complainant to the respondent raising demand. Although respondent received notice, he did not pay the amount within statutory period and hence on 6.11.2004 complaint was filed alleging that the respondent committed offence punishable under Section 138 of the Act. 3. Heard learned counsel for the respective parties. Both Advocates took me through the judgment of the trial court, so also the record. The main reason for acquittal is that as per the defence of the accused, cheque was issued at the time of taking loan as a security and it was not the cheque issued on 28.9.2004 towards amount due or in discharge of whole or any part of any legal liability. The learned Magistrate held the defence to be 3 probable and so recorded order of acquittal. 4. Shri B.S.Kudale, learned Counsel for the applicant relied upon several authorities. First is Rajneesh Aggarwal vs. Amit J.Bhalla (2001) 1 SCC 631. It is held therein that deposit of entire amount in the court pending the prosecution will not absolve the accused of criminal liability. The order of the High Court quashing the criminal proceedings on that ground was set aside. Relying on this, it is submitted by Advocate Shri Kudale that merely because certain amounts were paid prior to or after issuance of the cheque, that by itself will not absolve the respondent of his liability for offence punishable under Section 138 of the Negotiable Instruments Act. 5. The second case cited is Vasco urban Co-op. Credit Society Ltd. v. Shobha D. Korgaonkar 2005 CRI L.J.2465. The learned Single Judge Bench of this court, after referring to the judgment 4 of Single Judge Bench of Kerala High Court in the case of Kochayippa vs. Suprasidhan 2002 (3) ALL MR (Journal) 31, has held that when the accused has availed loan of Rs.1,50,000/= lakhs and issued a cheque for Rs.90,000/= on the date on which the total sum due was Rs. 1,92,350/=, merely because the amount was much less than the amount due, it cannot be said that the accused had not committed any offence. 6. In the said case of Vasco Urban Co-op. Credit society Ltd. (supra), so also in the case of Kochayippa vs. Suprasidhan 2002 (3) ALL MR (Journal) 31, the law or the principle laid down is that the amount mentioned in the cheque need not be the same as the amount of consideration that actually passed and that the words "in whole or in part" of any debt or other liability assumes significance in this context. Even if the cheque is for a lesser amount than the actual amount of consideration, still a cause of action would be available to the payee under 5 Section 138 of the Negotiable Instruments Act. 7. The next case relied upon by applicant is K. Bhaskaran v. Sankaran Vaidhyan Balan 2000 (1) Mh.L.J. 193. In that case, it is laid down in paragraph 9 that Section 139 of the Negotiable Instruments Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The trial court was not persuaded to rely on the interested testimony of DW-1 to rebut the presumption. The said finding was upheld by the High Court. It is held that it is not open to the accused to contend differently on that aspect. 8. The Learned counsel Shri Joydeep Chatterji on behalf of the respondent- accused argued that the presumption under Section 139 can be rebutted even by cross examination of the witness and the circumstances of the case. 6 9. In the present case, defence of the accused is that at the time of issuing loan itself, blank cheque was obtained from the accused and using the said cheque, complaint is filed. We find defence to that effect in paragraphs 11 and 16 of the judgment of the trial court. In paragraph 17, various amounts repaid towards loan are mentioned and the witness for the complainant has admitted those payments as evidenced by the receipts at Exhibits 29 to 38. 10. It may be noted that the cheque in this case is dated 29.9.2004 and on 1.10.2004 the accused paid amount of Rs.1300/= and prior to that on 28.8.2004 he paid amount of Rs.5,000/=. These two payments are relevant for us. If the cheque had been given on 29.9.2004 for Rs.1,26,450/=, there was no reason for payment of Rs.1300/- on 1.10.2004 which is just within three days from 29.9.2004 the date on which t he cheque was issued. In paragraph 18 7 of his judgment, the learned Judge has observed as follows; "18. During the cross-examination of the witness Gautam, he failed to state how much exact amount was outstanding from the accused on 28-09-2004. Basically, it is not case of the complainant Bank that against the part repayment of the loan, cheque issued by the accused. Then, but natural it was expected from any person to issue the cheque against the repayment of loan along with interest, of the amount which is outstanding to his loan account. During the cross-examination accused challenged even the loan disbursed to him coupled with the fact that Rs.26,700/= only outstanding and cheque taken as a security but witness denied all the suggestions on the points. Further, during the cross- examination he has denied that the bank used that the bank used the blank cheques from the borrower. But, it is to be noted that he has admitted the fact that on 28-09-2004 amount of Rs.1,26,450/= was not outstanding from the accused." 11. It may be noted that the amount of Rs.1,26,450/= for which the cheque was issued, is an odd amount. The witnesses examined on behalf of the 8 complainant-bank did not state how much amount exactly owed by accused to the bank on that day. Normally, a person will issue cheque for such odd amount only if that amount was due on that day. It is further observed by learned trial court in paragraph 19 of his judgment that the loan account extract disclosed that on 29.9.2004 outstanding amount was Rs.1,20,257/= and not the amount mentioned in the cheque. It may be noted that nobody would pay amount more than due. 12. Considering the facts and circumstances, in my opinion, the view taken by the learned Magistrate is a reasonable and probable view. Therefore, it is not a case to grant leave to file appeal. 13. Hence, application for leave to appeal stands rejected. Date:26/11/2009 (P.R.BORKAR, J.) pnd/criap1008.09