1 appln2888-9 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2888 OF 2009 Ganesh Dagdu Sawant .. Applicant Versus Santosh Kishan Chorate and others .. Respondents Vijay M. Vaghela for the applicant Mr. V. R. Bhosale, for the State Mr. Sachin S. Gite, for Respondent No.1 CORAM : N. D. DESHPANDE, J. DATE : 31 st March, 2011 P. C. 1. Heard both sides. 2. This is an application for leave to appeal against the order of acquittal dated 11/5/2009 passed by the learned Metropolitan Magistrate 31st Court, Vikhroli, Mumbai in Criminal Case No. 1578/SS/2008 in a complaint case under section 138 of the Negotiable Instruments Act, 1881. 3. Pursuant to the notice issued, the respondent-original accused gave his appearance through is counsel. Respondent- accused is also heard. Matter was extensively argued by the 2 appln2888-9 learned counsel for the applicant. The applicant is a complainant who filed complaint under Section 138 of the N.I.Act for recovery of Rs.85,000/- from the accused who gave him a cheque and the same was bounced when presented for encashment. He subsequently learnt that at his back the accused had already intimated the Bank for stopping the payment and thus, he has been cheated. 4. Both the parties were given full opportunity to put up their case, file affidavit and make their submissions. According to the appellant/complainant, the accused has not discharged his burden and failed to rebut presumption which is in favour of the holder in due course under section 139 of the N.I.Act. 5. It is seen that the accused did not dispute having given the cheque to the appellant-complainant and further explained in what what facts and circumstances the said cheque was given to the complainant, in his reply to the demand notice of the complainant. Copy of the same is also filed on record. After going through section 139 it is seen that it refers to section 138 where is are primarily concerned with the discharge, in whole or in part, of any debt or other liability. Thus it must be shown and stated by the complainant that there is some liability due and recoverable and the said cheque is for payment of such liability in whole or in part thereof. 3 appln2888-9 6. During the course of hearing, the learned counsel for the applicant supplied a copy of evidence of parties, statement of the accused, copies of notices and also other documents relating to their previous money transactions, though they are not reflected in the original complaint complaint filed by the applicant before the Metropolitan Magistrate under Section 138 of the N.I. Act. The applicant wants to rely on these material which according to him,are not disputed, in order to fasten the liability as legally enforceable and as such, the evidence of dishonoured cheque would be sufficient evidence to bring home the guilt. The nature of the proceedings under section 138 is similar to that of recovery of amount by way of suit. The offence under Section 138 is also defined as ”deemed to have committed offence” and it is compoundable. It mainly aims at recovery of the cheque amount so also to honour the cheques. The procedure for recording of evidence is also borrowed from the Civil Procedure Code (Amended), as it is seen that in a complaint under Section 138 of the N.I. i.e. examination in chief as evidence by way of affidavit , is permitted. This is the only criminal complaint case in which evidence by way of affidavit is considered, such is not permitted in any other trial of a criminal case. Bearing in mind this principle, in my opinion, there would be no difficulty to appreciate the veracity of the complaint of the complainant arising out of bounced cheque. No evidence should be looked into for which 4 appln2888-9 there is no pleadings. Certain material facts are required to be stated in order to deal with the complaint or prosecution. 7. It has been rightly pointed out by the learned counsel for the respondent-accused that except friendly loan of Rs.84,500/- was advanced for business purpose with interest @ 18% per annum, as stated, no details about the loan transaction is stated. There is no mention about the date of loan advaned. Admittedly it is seen that there is no advance of Rs.85,000/- made by the complainant to the accused and therefore, no case can be made out that cheque of Rs.85,000/- was issued for repayment of such loan. It is admitted by the complainant that prior to issuance of the cheque he had made several advances beginning from first small advance of Rs. 1,000/-, Rs.10,000/- on 30/7/2006, Rs.35,000/- in December, 2006 by cash. He further admitted that as against the said loan of Rs. 46000/- (1,000+10,000+35,000), he had received a cheque of Rs. 40,000/- in December, 2007 but he did not deposit the same for encashment for the reasons best known to him which he quoted that it was adviced by the accused not to send it for collection. Thereafter cash of Rs.40,000/- was advanced by the applicant for which there is no proof except a bare word and this is how, in return, he got a cheque of Rs.85,000/- dated 17 th January, 2008. Thus, according to the complainant, the cheque has been received by him as security for total commutative liability of Rs.85,000/-. 5 appln2888-9 Admittedly this cheque was not honoured because of “stop payment” instructions given by the accused. All these details have been taken into consideration by the trial Court. The accused, in reply has stated his story which is full of defence, admitting further that they had some friendly relations. Therefore, he had also worked for him in a business and also in politics and election and for such work and services rendered, the applicant had promised him to pay and therefore there was some payment of amount. These aspects were also taken into consideration by the trial Court. 8. I have gone through all relevant material on record and come to the conclusion that there was no liability of Rs.85,000/- due and payable to the complainant. There is no evidence of payment of first advance Rs.1000/-, 10,000/- and another 35000/- and as such it cannot accepted that issuance of cheque was for discharge of such liability when when there is sufficient material brought on record by the accused that also reveal from the evidence of the complainant ‘s cross examination and so the presumption under section 139 has been duly discharged by the accused. 9. The complainant has admitted that there was agreement to pay interest @ 18% for such advances made from time to time. However, he did not claim any interest for such transaction and 6 appln2888-9 limited his claim for the principle amount. Once it is seen that the transaction is not so simple or normal, of day to day business, merely for issuance of cheque, directing enforceability or payment upon its bouncing, would be a risky. Only legitimate and lawful claim can be enforced. There is detail discussion found in the judgment of the trial Court which call for no interference. No prima facie case is made out. Consequently leave refused. 10. Application is accordingly rejected. ( N. D. DESHPANDE, J. )