Dismissed

Vijaysingh Narayansingh Rajput Deceased Substituted by Vikas Vijaysing Rajput v. Mahesh Vilas Abhane and Anr.

Bombay HC23 Jul 2013APPLN/160/2011

Case brief

AI extract

What is this about?

Single bench magistrate court rejected leave to appeal against an acquittal in two cheque dishonour cases, upholding the view that prosecution did not prove legally enforceable debt and accused successfully rebutted presumption.

What did the court decide?

Leave to appeal refused; applications rejected.

What the court decided

Vijaysingh Narayansingh Rajput Deceased Substituted by Vikas… — Cheque Dishonour | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 160 OF 2011 WITH CRIMINAL APPLICATION NO. 161 OF 2011 IN

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CRIMINAL APPEAL NO. OF 2011

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Shri Vijaysingh Narayansing Rajput, (Deceased) substituted by:

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Shri Vikas Vijaysing Rajput

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... Applicant

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vs.

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The State of Maharashtra & Anr. ... Respondents

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Mr. Amit Sale,Advocate for the applicant. Mr. Vikram Chavan, Advocate, for respondent No.1. Ms.M.R.Tidake,APP,for the respondent-State

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CORAM: SMT. SADHANA S.JADHAV,J. DATE : 23^rd July, 2013

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P.C.

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These are the applications seeking leave to appeal against the judgment and order passed by the Judicial Magistrate, First Class and 6^th Addl. Judge, Small Cause Court, Pune, in Criminal Case No.28627/2007 and Criminal Case No.28628/2007 dated 23.12.2010. Criminal Application No.160/2011 is in

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respect of cheque at Exhibit 31, whereas Criminal Application No.161/2011 is in respect of the cheque at Exhibit 36. The present applicant is the original complainant in Criminal Case No.28627/2007 and Criminal Case No.28628/2011.

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Mhi 2 APPLN-160-11.sxw The respondent No.1 herein is the accused in the said case. The complainant i.e. the present applicant had filed a complaint under Section 138 of the Negotiable instruments Act, 1881 against the present respondent.

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It is the case of the applicant that the present applicant and the respondent No.1 were having friendly relationship. In the month of May and June 2005, the respondent No.1 herein solicited a hand loan of Rs.3 lakhs from the applicant for expansion of his hospital. The applicant extended the loan to the present respondent from time to time totalling Rs.3 lakhs. On 30.6.2005, the respondent No.1 had allegedly executed a promissory note in favour of the present applicant promising to pay the amount of hand loan within two years from the date of execution of the promissory note. The complainant has further averred that the respondent No.1 had issued a cheque to the tune of Rs.3 lakhs on 28.5.2007. The said cheque was dishonoured on 2.6.2007 for the reason “signature differs” and “refer to drawer”. According to the applicant, the cheque was dishonoured for want of sufficient funds. It is alleged that the respondent No.1 herein sent a notice to the applicant on 8.6.2007. The applicant replied the said notice on 18.6.2007 and demanded the cheque amount. The respondent received the statutory/demand notice on 22.6.2007. The said notice was replied by the respondent on 25.6.2007. The defence of the accused is that in September

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2005, he had borrowed Rs.50,000/- from the applicant on 12.12.2006. He offered to repay the amount of Rs.50,000/-. The applicant demanded Rs.50,000/- towards interest. The respondent No.1 paid Rs.75,000/-. However, the applicant did not issue the receipt for the said amount. On 25.5.2007, while the respondent was travelling to Village Aundh, he had lost two cheque books containing 12 bank unsigned cheques. He immediately intimated the Bank and lodged FIR with the police. On 5.6.2007, the Bank had called upon the respondent and informed him that two of those missing cheques were presented for encashment, but are dishonoured since the signatures differed with the specimen signature and also because the respondent had issued instructions of stop payment. According to the respondent, the applicant has forged the signature of the accused on the blank cheques and misused the same to file the present case.

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In this background, upon receiving the complaint of the applicant, the learned Judicial Magistrate, First, Class, Pune, was pleased to issue process against the present respondent No.1. The applicant adduced evidence to prove his claim that the accused/respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act. The applicant had examined PW1 Vikas to prove that the respondent had executed a promissory note which is at Exhibit 40 and he had also examined PW-2 Yogesh. There is inherent

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discrepancy in the substantive evidence of Viikas and Yogesh. According to Vikas, the accused had brought a blank stamp paper to execute promissory note. However, Yogesh claimed that the accused had already brought a written promissory note.

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In the course of trial, the accused/respondent had requested the Court to refer the cheques to the handwriting expert. Although the opinion was received, the accused/respondent did not choose to examine the handwriting expert. Hence, the Court has held that the cheque at Exhibit 31 bears the signature of the accused and, therefore, execution of the cheque at Exhibit 36 is proved. The applicant has not placed on record any document to show that he had actually extended Rs.3 lakhs to the present respondent. The applicant had deposed before the Court that he did not feel it necessary to produce any record in the Court and, therefore, the Magistrate has rightly drawn adverse inference against the applicant under Section 114 Illustration (g) of the Evidence Act, 1872. The learned Magistrate has rightly held that the accused/respondent has rebutted the preemption contemplated under Section 139 of the Negotiable Instruments Act. The accused had placed on record certain documents and brought certain circumstances on record which would render the applicant's case doubtful that any payment was made by the applicant to the respondent-accused creating some

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legally enforceable debt which he was to discharge by issuing a cheque at Exhibit 31. The applicant has therefore failed to prove the issuance of cheque at Exhibit 31. It is pertinent to note that the cheque was dishonoured mainly on the ground that the signature on the cheques differed with the specimen signature. The learned Magistrate has rightly held that the applicant has failed to prove that there was any legally enforceable debt and, therefore, the accused/respondent was entitled to acquittal. The reasons assigned are justifiable and no interference is called for.

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Hence, leave is refused. Applications are rejected.

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(SMT.SADHANA S.JADHAV, J.)

Vijaysingh Narayansingh Rajput Deceased Substituted by Vikas Vijaysing Rajput v. Mahesh Vilas Abhane and Anr.

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Vijaysingh Narayansingh Rajput Deceased Substituted by Vikas Vijaysing Rajput v. Mahesh Vilas Abhane and Anr.

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