Dismissed

Asha R. Desai v. Suhas P. Thakur and Anr.

Bombay HC29 Nov 2011APPP/366/2011

Case brief

AI extract

What is this about?

This application sought a review of an order dismissing leave to appeal an acquittal under Section 138 NI Act. The High Court denied the review, affirming that the petitioner failed to prove financial capacity to lend the amount or produce original evidence.

What did the court decide?

The criminal application was disposed of; the order rejecting leave to appeal was confirmed and not recalled.

Asha R. Desai Vs Suhas P. Thakur and Anr. — Cheque Dishonour | Bombay HC (2011)

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1 CR.APLN. 366/2011-CR. APLN.251/2011

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mnm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 366 OF 2011 IN CRIMINAL APPLICATION NO.251 OF 2011

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Mrs. Asha R. Desai

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...Applicant/Appellant

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(Orig. Complainant)

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Vs.

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Suhas P. Thakur & Anr.

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...Respondents

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Mr. S.Y. Katkade, Advocate i/b. Mrs. V. Nirmala, Advocate for the Applicant Applicant present

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Mr. Jayesh Bhatt, Advocate for Respondents

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CORAM : MRS. ROSHAN DALVI, J . Date : 29 NOVEMBER 2011.

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P.C.

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The application essentially seeks a review of my order dated 4^th May 2011. Since this is a criminal matter it is termed as criminal application. The applicant has prayed for recalling the order dated 4^th May 2011 dismissing the criminal application for leave to appeal from the order and judgment of the learned Sessions Judge dated 6^th January 2011.

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The applicant is the original complainant in a complaint filed under Section 138 of Negotiable Instruments Act, 1881 upon two cheques of Rs. 2.20 lakhs and Rs.30,000/-. The applicant claims to be having another writing which was given by the accused as security in an envelope which was not read by her then, but was read by her after the complaint was lodged and when it was to be heard.

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2 CR.APLN. 366/2011-CR. APLN.251/2011

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The applicant claims that Rs.2.50 lakhs were advanced to the accused. The two cheques are in two different handwriting. Both cheques were open when they were given to the applicant. The accused has produced a writing showing his specimen handwriting. The writing is verbatim the same as the writing relied upon by the complainant, the contents of which are denied by the accused; only the signature being not denied. The handwriting on the cheque of Rs.30,000/- is the same as the specimen handwriting of the accused. The handwriting on the cheque of Rs.2.20 lakhs and on the writing relied upon by the complainant are similar though they are in two different languages.

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Upon these facts the defence of the accused has to be considered. The accused admitted advance of Rs.30000/-, but not Rs.2.20 lakhs. The complaint is conjoint for Rs.2.50 lakhs. It is for the applicant to show her means to give a loan of Rs.2.20 lakhs as the execution of cheque of Rs. 2.20 lakhs is denied. The complainant has been cross examined on that score. She has shown three different avocations from where she earns Rs. 7000/- to Rs.8000/- which is the same as the monthly household expenditure. She has a bank account. The money is not given from the bank account. She has explained the circumstances of her having that amount in cash by showing her husband’s income from plying an ambulance. She claimed to have received Rs.1.60 lakhs in January 2009 paid by her father to her upon sale of a property 3 years ago. She is shown to have collected amounts from her customers, her husband and the amount of her father to give the loan to the accused in cash by currency notes of Rs.1000/-, 500/-, 100/- and 50/- counting them after the receipt of the telephonic call of the accused.

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She gave the loan to the accused incidentally upon being introduced to the

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3 CR.APLN. 366/2011-CR. APLN.251/2011

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accused by her goldsmith at the instance of the accused. Hence coincidentally at the time she was introduced she is shown to have had precisely that much amount in her home lying with her.

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That case has been disbelieved and hence the accused has been acquitted. Since she filed an appeal from acquittal, leave had to be granted. Leave could have been granted only upon her showing her means. After her Advocate was heard by the Court, she took time to show her means. She failed to remain present. Since the matter was argued at length and no further instructions were received, the impugned order came to be passed.

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She now claims to show that two ambulances were owned by her husband, a fact not mentioned in her cross examination. In fact the contrary fact was mentioned that “he plies an ambulance” suggesting that he is a mere driver of one ambulance.

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She has not produced the original documents even now. She has remained present before me, yet only xerox copies are produced in an affidavit, copy of which is not even handed over to the Advocate for the accused.

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The impugned order does not deserve to be recalled. No case for granting leave to appeal is made out. The order rejecting leave is confirmed on merits after hearing her Advocate in her presence.

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10.Criminal Application is disposed off accordingly.

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ROSHAN DALVI, J.

Asha R. Desai v. Suhas P. Thakur and Anr.

Case brief

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Asha R. Desai v. Suhas P. Thakur and Anr.

Case brief

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