1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Revision Application No.220 of 2007 Shivshankar B. Chaudhary .. .. Applicant (Orig.Respondent/ Complainant) V/s. 1.State of Maharashtra & anr. .. Respondents (Respondent No.2 Orig.Appellant/ Accused) Mr.Tanvir Shaikh for Applicant. Mr.K.G. Pashte for Respondent No.2. Mrs.A.A. Mane, APP for State. ---- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 3rd November 2009 Date of pronouncing the order : 11th November 2009 ORDER: 1.This Application is filed to challenge the order dated 28.2.2007 of the learned Sessions Judge for Greater Bombay in Criminal Appeal No.266 of 2006, acquitting Respondent No.1 and refunding the amount deposited by him. The Applicant was the original Complainant, who filed a Complaint under Section 138 of the Negotiable Instruments Act (the said Act) against Respondent No.2. The learned Metropolitan Magistrate, 50th Court, 2 Vikroli, Mumbai, convicted Respondent No.2, sentencing him to suffer a simple imprisonment for 3 months, levied a fine of Rs.1,000/- and granted compensation to the Applicant of Rs.1,50,000/-. This order came to be set aside in the aforesaid Appeal, under which Respondent No.2 came to be acquitted. 2.Consequently, there are inconsistent judgments. Whereas the Applicant is supporting the judgment of the learned Metropolitan Magistrate, Respondent No.2 has supported the impugned judgment. The reasonings in both the judgments are diametrically opposite. It is, therefore, for this Court to weigh the evidence, both oral and documentary, to come to a conclusion for acceptance or rejection of the reasonings in the impugned judgment and consequently, the acquittal of Respondent No.2. 3.It is the case of the Applicant that he lent a friendly loan of Rs.1 Lakh and Rs.40,000/- in cash to Respondent No.2. Respondent No.2 issued a cheque drawn on the Abhyudaya Co-operative Bank Ltd. for Rs.1,40,000/-. The cheque came to be dishonoured. The Notice of Demand is not replied. It is shown to have been sent by Post. The postal endorsement is that though the intimation has been posted, it has not been claimed. It has been returned on 18.6.2003. This is after filing of several 3 complaints by Respondent No.2 as well as his wife relating to dispossession of Respondent No.2 from his residential premises which shall be considered presently. It has to be seen whether non-acceptance or non-claiming of the notice, by itself, is fatal to the case of Respondent No.2. 4.In the Complaint filed by the Applicant herein viz. CC No.988/SS/2005, the Applicant has set out for the first time when the two loans were granted by him to Respondent No.2. Paragraph 2 of the Complaint shows that Rs.1 Lakh was given in November 2000 and Rs. 40,000/- in May 2002. The Complaint is dated 25.7.2003. Hence, about 3 years after the first installment and more than one year after the second installment the time of giving the two loans is set out. This important aspect has been stated from memory. The amounts were advanced in cash. The Applicant was in business as a travelling commission agent. His cross-examination shows that he earns Rs.10,000/- per month. He pays income-tax. He knew Respondent No.2 because he was his tenant. He was like his brother, though he had filed many Complaints against the Applicant. In the cross-examination, the Applicant could not recollect the dates of the payments. However, he deposed that the payment was made to Respondent No. 2, to be paid to the BEST and for construction of his 4 house in his native place. The payment is made at a distance of one and half years. Between the two payments, no part of the loan is returned. The Applicant had never taken a pro-note or any receipt from Respondent No.2 when he lent both the amounts. There was nobody present at the time the amounts were lent in cash. The cross-examination shows that it was withdrawn from his mother s account in the Abhyudaya Co-operative Bank Ltd., Nal Bazar Branch. The Applicant has not shown the Bank Account, showing withdrawals in November and May 2002 of Rs.1 Lakh and Rs.40,000/-, respectively. That would have clinched the issue. The cross-examination shows that he asked for refund of the amount 5/6 months after he paid the amount. The cross-examination does not show that this request for refund relates to which payment. Further cross-examination shows that he asked for refund of the amount one month after he paid Rs.40,000/- to Respondent No.2. There was no other transaction between the two parties. 5.The learned Sessions Judge has correctly observed that there is absolutely no substantiation of the amount stated to be lent and advanced to Respondent No.2. Aside from the month and the year of the payments being stated from memory, there is absolutely no other record of the payment. The capacity to pay is, therefore, not 5 shown. 6.This assumes importance in view of the defence of Respondent No.2 to rebut the presumption under Section 139 of the said Act. The cheque is dated 27.1.2003. It is stated to have been issued on 15.1.2003. It is deposited in the Bank for the first time on 5.4.2003. It is stated to be deposited for the second time on 9.6.2003 at the request of Respondent No.2. Thereafter the Notice of Demand is sent on 11.6.2003. The Notice of Demand does not mention the particulars of the time of the advances made. 7.Soon after the date of the cheque and before the first deposit, a Complaint came to be filed by Respondent No. 2 relating to the incident that transpired between the parties on 16.3.2003. The Complaint dated 16.3.2003 is stated to have been filed in the early hours of the next day. The Complaint dated 16.3.2003 is made by Respondent No.2 to the relevant Police Station. It mentions about disputes relating to the possession of the residential premises of Respondent No.2, which the Applicant claims, has been tenanted to him. It sets out the incident that transpired in the late hours of 16.3.2003. It shows how the Applicant came to evict/ dispossess Respondent No.2 and his family members from the residential premises aided by certain Gundas. It 6 shows the threats of the Applicant. Essentially the Complaint relates to the dispossession. However, in the penultimate paragraph, the last two lines show that upon threats, one blank cheque has been taken by the Applicant in which the consideration amount is not mentioned. It apprehends that misuse of the cheque can be done. 8.Mr.Tanvir Shaikh, the learned Advocate for the Applicant, argued that reading of the Complaint shows that the aspect relating to the cheque is seen to be inserted and interpolated in the Complaint which was not initially a part thereof. A reading of the copy of the Complaint does suggest this aspect. It would have to be seen whether because of this interpolation the defence of Respondent No.2 is dishonest. 9.He also argued that if Respondent No.2 had indeed given a cheque as shown in that Complaint, he would have given stop payment instructions to his bankers, which is not done. This may be a lapse on the part of Respondent No.2. However, neglect to give stop payment instructions is not fatal to his case. 10.There are 3 other Complaints made on 26.5.2003, 5.6.2003 and 17.10.2003 made by the wife of the Applicant. She was also residing in the suit premises. 7 She has complained about the threats of dispossession therefrom. She has not mentioned anything about the cheque issued by Respondent No.2 or signed by him in favour of the Applicant. Mr.Shaikh contended that this absence of particulars is an important factor against the case of Respondent No.2. A reading of these Complaints shows that the wife is concerned only with the dispossession of the premises. She has not issued any cheque. She is not expected to state anything about the cheque in her Complaints. 11.Even the evidence of the son of Respondent No.2 shows the main grievance about the threat of killing him and his family members, if they did not vacate the premises of the Applicant. His evidence further shows that under those circumstances the cheque was forcibly taken by the Applicant from his father, without filling up any details. Thereafter his father immediately approached the Senior Inspector of Kurla Police Station and the Commissioner of Police to lodge his Complaint. In these circumstances, the essential part of the Complaint dated 16.3.2003 must be appreciated. The threats by the Applicant and the other Gundas was essentially for dispossession and hence, the cheque assumed secondary importance. 12.Even on a reading of the first Complaint made by 8 Respondent No.2 dated 16.3.2003, it is seen that the issue of the cheque is of secondary importance. The main concern of Respondent No.2 is threatened dispossession by the Applicant with the aid and assistance of certain Gundas, for which he rushed to the Police Station at that late hour. 13.It is in this light that the aforesaid chronology would have to be appreciated. The Applicant claims to have made payment to Respondent No.2 of Rs.1 Lakh in November 2000. He claims to have made another payment in May 2002. Until May 2002 and one month thereafter, he has not requested the return of any part of that amount. He claims to have requested the amounts to be returned one month after that date. The learned Judge has rightly considered that that does not stand to reason. In view of the fact that some disputes did take place, even if dispossession of the premises alone, the oral statement of cash amounts being given about 3 years ago, for which the cheque came to be issued a few days before the dispute does not stand to reason. In view of the disputes shown by Respondent no.2, the burden would shift upon the Applicant to show his capacity to pay and the actual payments made. Since he made the payments upon withdrawal from his mother s account in Abhyudaya Co-Op. Bank, Nal Bazar Branch, it was imperative for the Applicant to produce the 9 Accounts Statement of his mother s Account to show the relevant entries. That having not been done, his oral statement from memory made for the first time in the Complaint dated 25.7.2003, years after the initial loan cannot be accepted. 14.The Applicant has admitted the difference in ink in the body of the cheque and his signature. In view of these aspects, the case of Respondent No.2 that a blank cheque was taken from him under threats (Dadagiri), for which no consideration was mentioned by him, stands to reason. At-least on a preponderance of probability, this case would be required to be accepted in view of the total lack of evidence of the payment made, for which the cheque came to be issued. 15.It may be mentioned that since Respondent No.2 was the tenant/gratuitous licensee in possession of the Applicant s premises, there could have been a dispute between the parties. There is a Civil Suit filed in the Bombay City Civil Court by the Applicant against Respondent No.2. It has been transferred to the Small Cause Court, upon the defence that the Suit is for evidence of Respondent No.2 as the gratuitous licensee therein. It could have been that Respondent No.2 was compelled to give some consideration for continuing in possession of the Applicant s admitted premises. 10 However, it is not the Applicant s case that the cheque was issued by Respondent No.2 in settlement of or for consideration of residing in his premises. The settlement consideration is not written by Respondent No.2 in the cheque. The case of the Applicant is of only two advances being made in cash in November 2000 and May 2002, for which the cheque came to be issued on 15.1.2003 dated 27.1.2003. That case is seen not to have been substantiated. 16.Hence, the order of the learned Sessions Judge, upon the reasoning stated by him, is seen to be correct. No interference thereto is called for. The Criminal Revision Application is, therefore, dismissed. (SMT.ROSHAN DALVI, J.)