- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPLICATION NO.553 OF 2008, CRIMINAL APPLICATION NO.553 OF 2008, CRIMINAL APPLICATION NO.553 OF 2008, CRIMINAL APPLICATION CRIMINAL APPLICATION CRIMINAL APPLICATION NO.554 OF 2008, NO.554 OF 2008, NO.554 OF 2008, CRIMINAL APPLICATION NO.555 OF 2008, CRIMINAL APPLICATION NO.555 OF 2008, CRIMINAL APPLICATION NO.555 OF 2008, CRIMINAL APPLICATION NO.556 OF 2008, CRIMINAL APPLICATION NO.556 OF 2008, CRIMINAL APPLICATION NO.556 OF 2008, CRIMINAL APPLICATION CRIMINAL APPLICATION CRIMINAL APPLICATION NO.557 OF 2008, NO.557 OF 2008, NO.557 OF 2008, CRIMINAL APPLICATION NO.558 OF 2008, CRIMINAL APPLICATION NO.558 OF 2008, CRIMINAL APPLICATION NO.558 OF 2008, CRIMINAL APPLICATION NO.559 OF 2008, CRIMINAL APPLICATION NO.559 OF 2008, CRIMINAL APPLICATION NO.559 OF 2008, CRIMINAL APPLICATION CRIMINAL APPLICATION CRIMINAL APPLICATION NO.560 OF 2008 NO.560 OF 2008 NO.560 OF 2008 Pramod Ramchandra Sawan ...Applicant (in all applications) vs. 1.State of Maharashtra 2.Sanjay Ramlal Barot ...Respondents (in all applications) Mr.Rahul Arode for the applicant Mr.G.H.Sukla i/b M/s.G.H.Sukla for Respondent no.2 Mr.P.A.Pol A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 26,2009 : MARCH 26,2009 : MARCH 26,2009 P.C.: P.C.: P.C.: 1. The submissions of the learned counsel for the parties were heard on 21st March 2009 and the applications were adjourned for passing the orders. These are the applications under sub section 4 of section 378 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code). The applicant filed complaints against the concerned respondents for offence punishable under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The facts of these applications are more or less identical and therefore, I am referring to the facts of the complaint subject matter of criminal application no.533 of - 2 - 2008 for the sake of convenience. 2. According to the case of the applicant-complainant, the accused-2nd respondent approached the applicant and requested for friendly loan of Rs.4,30,000/- by giving assurance that the amount will be repaid by March 2003. According to the applicant, the 2nd respondent Respondent also executed an Affidavit cum declaration dated 24th May 2002 by which he promised to repay the loan on or before March 2003. The second respondent issued a cheque drawn on I.D.B.I bank bearing no.103864 by way of co-lateral security. Thereafter, a request was made by the 2nd respondent for a further friendly loan of Rs.5,08,000/-. The second respondent promised to repay the entire amount on or before March 2003. Relying upon the Affidavit cum undertaking, the applicant advanced the said amount of Rs.5,08,000/- to the second respondent. According to the applicant, various cheques were issued by the accused in discharge of the said debt. In the complaint subject matter of Criminal application no.554 of 2008, the cheque is in the sum of Rs.78,000/-. The said cheque was dishonoured and therefore, a complaint was filed by the applicant. Along with the complaint subject matter of the said criminal application No.554 of 2009, similar complaints were filed by the applicant on the basis of the cheques issued by the 2nd respondent which were dishonoured. The learned trial Judge referred to the affidavit cum declaration in which - 3 - the accused had accepted the liability to the extent of a sum of Rs.4,30,000/-. The learned Judge held that out of the said amount of Rs.4,30,000/-, a sum of Rs.1,00,000/- was paid by the father of the applicant to the 2nd respondent. The learned Judge therefore found that the liability of the 2nd respondent to the applicant was in the sum of Rs.3,30,000/-. The learned Judge accepted the defence that out of the said amount, a sum of Rs.2,07,000/- was paid by the 2nd respondent to the applicant and only a sum of Rs.1,23,000/- was due and payable by the 2nd respondent . The learned Judge observed that the subject matter of this complaint did not relate to the said liability of Rs.1,23,000/- and therefore, the learned Judge has passed an order of acquittal. 3. The learned counsel for the applicant invited my attention to the findings recorded by the learned trial Judge. He submitted that the learned trial Judge could not have found fault with the applicant for not producing the promissory note earlier which is referred to in the affidavit in lieu of examination in chief. The learned Trial Judge failed to appreciate the case of the applicant made in Paragraph 5 of his affidavit in lieu of examination in chief. He submitted that the presumption under section 139 of the said Act was available and the said presumption was not rebutted. He submitted that sufficient evidence was adduced to show that the applicant had accepted an advance of Rs.9,38,000/- and in - 4 - fact a promissory note executed by the 2nd accused in the said amount was produced on record. He submitted that though the presumption under section 139 of the said Act was not rebutted, the learned trial Judge has erroneously passed the order of acquittal. The learned Counsel for the 2nd respondent supported the impugned Judgment and order. 4. I have considered the submissions. I have perused the complaint, the affidavits in lieu of evidence and other documents on record. In the complaint the applicant has come out with a case that he had advanced a sum of Rs.4,30,000/- as well as a further loan of Rs.5,08,000/- to the 2nd respondent. Reliance has been placed on promissory note allegedly executed by the 2nd respondent by which he agreed to pay a sum of Rs.9,38,000/- to the applicant. It is pertinent to note that in the complaint there is no reference to the promissory note in the sum of Rs.9,38,000/- executed by the 2nd respondent. There were two affidavits in lieu of examination in chief fixed by the applicant. There is no reference to the said promissory note in the first affidavit. The submission of the learned counsel for the applicant was that the omission to refer to the promissory note has been duly explained in the cross examination of the applicant. It is stated in the cross examination that when the complaint and first affidavit in lieu of examination in chief were filed, the promissory note was misplaced and therefore, the applicant did not instruct - 5 - his Advocate about the promissory note. 5. The applicant admitted in the cross examination that he deposed for the first time in the court about the reason for not referring to promissory note in the complaint. The fact that there is no reference to the promissory note in the demand notice, in the complaint and in the first affidavit in lieu of examination in chief is very relevant and significant. 6. In the cross examination the applicant denied the suggestion that a sum of Rs.9,38,000/- was not disbursed to the accused and the amount disbursed was only Rs.3,30,000/-. In the cross examination the applicant came out with a case that he obtained a sum of Rs.6,00,000/- from his father for paying the same to the accused and he paid a sum of Rs.3,30,000/- out of his own earning. He admitted that he did not have any document to show that he obtained a sum of Rs.6,00,000/- from his father. He stated that his father was holding the post of Godown Keeper at monthly salary of Rs.12000/-. He stated that he disbursed the amount between March 2001 to March 2003. In the cross examination, the applicant admitted that there was a dispute regarding recovery of money between himself and the accused and he filed N.C.Complaint on 20th October 2003 at Malbar Hill Police Station. A certified copy of the said complaint has been placed on record. In the said complaint there is no reference - 6 - at all to the loan of Rs.9,38,000/- and the complaint refers only to the amount of Rs.4,30,000/- advanced to the accused by the applicant. The said complaint was lodged on 20th October 2003 and it is the case of applicant that the amount of Rs.9,38,000/- was paid from time to time from March 2001 to March 2003. It falsifies the case of the applicant of advancing a sum of Rs.9,38,000/-. The promissory note is a doubtful document as the existence of the same was not pleaded in the demand notice, in the complaint and in the first affidavit in lieu of examination in chief. What remains on the record is the the declaration by the accused acknowledging the receipt of Rs.4,30,000/-. The applicant himself admitted that out of the said amount, only a sum of Rs.3,30,000/- came from his own earnings and the balance amount was purportedly paid by his father. In absence of any evidence to show that the father of the applicant had really paid the said amount, the learned Judge held that the liability of the 2nd respondent accused was only to the extent of Rs.3,30,000/-. The learned Judge on consideration of the oral evidence, pleadings and defence of the accused came to the conclusion that a sum of Rs.2,07,000/- was repaid by the 2nd respondent to the applicant and thus the balance liability was only to the extent of Rs.1,23,000/-. The 2nd respondent produced bank pass book/statement of account of his accounts with the Sangli Bank Ltd and Bank of Baroda to show that the said amount of Rs.2,07,000/- was paid by cheques drawn on the said accounts. - 7 - The learned Judge found that none of the cheques subject matter of these applications were relating to the liability of Rs.1,23,000/-. It must be noted here that in the complaint relating to the said liability of Rs.1,23,000/-, the learned Judge has passed an order of conviction. In the other complaints an order of acquittal has been passed. As there is material on record to show that even in October 2003, the applicant contended that he had advanced only a sum of Rs.4,30,000/- to the 2nd respondent and considering the factual position that out of that amount, only a sum of Rs.3,30,000/- came from his own earnings, the view taken by the learned Judge is a possible and probable view which could have been taken on the basis of the evidence on record. Therefore, no case is made out for grant of leave. Application is rejected. 7. It must be clarified that the observations made in this order are for limited purposes of considering the prayer for grant of leave to prefer an appeal. The observations made in this order shall not be construed as any finding on rights and liabilities of the parties. JUDGE JUDGE JUDGE