Dismissed

Mangesh Vithoba Chavan v. Suhas Shrikrishna Deshpande and Anr.

Bombay HC23 Oct 2018ALP/87/2018

Case brief

AI extract

What is this about?

In this criminal application for leave to appeal, the High Court of Bombay rejected the applicant's challenge to the acquittal of the respondent for offences under Section 138 of the Negotiable Instruments Act. The court upheld the lower court's finding that the cheque date was altered and that evidence indicated the debt was not legally recoverable.

What did the court decide?

Application for leave to appeal rejected; impugned order of acquittal upheld.

Mangesh Vithoba Chavan Vs Suhas Shrikrishna Deshpande and Anr. — Cheque Dishonour | Bombay HC (2018)

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2.ALP.87.18.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.87 OF 2018

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Mangesh Vithoba Chavan … Applicant

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V/s.

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Suhas Shrikrishna Deshpande & Anr. ... Respondents

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Mr. Rushikesh G. Patil, Advocate for the Applicant.

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Mr. Venkatesh A. Shastry, Advocate for respondent No.1.

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Mr. P.H. Gaikwad Patil, APP for respondent No.2/State.

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CORAM : A.M.BADAR, J.

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DATED : 23^rd OCTOBER 2018.

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P.C. :

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This is an application for leave to appeal in order to challenge the Judgment and Order dated 2^nd September 2015 passed by the learned Judicial Magistrate First Class, Pune in Summary Criminal Case No.29928/2013 between the parties, whereby respondent No.1/accused was acquitted of the offence

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Aarti Palkar

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2.ALP.87.18.doc

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punishable under Section 138 of the Negotiable Instruments Act, 1881.

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Heard the learned Counsel appearing for the applicant/original complainant. He drew my attention to Paragraph 25 of the impugned Judgment and Order of acquittal and argued that though the learned trial Court came to the conclusion that there was tampering in the negotiable instrument, the bank has not raised objection to that effect and therefore, the learned trial Court erred in acquitting the respondent/accused.

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The learned Counsel appearing for the

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respondents/accused opposed the application by contending that the agreement brought on record by the applicant/original complainant itself shows that the cheque was given as a security for repayment and as such, the respondent/accused was rightly acquitted. It is further argued that evidence of the banker, who is examined as DW2 goes to show that the amount was duly paid in the account of wife of the applicant/original complainant. It is further argued that there was tampering in the negotiable instrument.

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Aarti Palkar

2.ALP.87.18.doc

I have considered the submissions so advanced and also

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perused the record made available. It was a case of the applicant/original complainant that the respondent/accused demanded some amount as a handloan. Therefore, the applicant/original complainant had advanced an amount of Rs.1 Lac by cheque and further amount of Rs.1 Lac by cash. The respondent/accused agreed to repay that amount alongwith additional amount of Rs.1 Lac. The applicant/original complainant further averred that towards repayment of this debt, the respondent/accused advanced an amount of Rs.1 Lac by a cheque dated 31.08.2013. However, that cheque was returned with an endorsement “Insufficient Fund”.

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During trial of the complaint, the applicant/original complainant examined himself and placed reliance on documentary evidence. Respondent/accused examined himself and also adduced evidence of Sagar Khidkar, Officer of the Bank as DW2. After considering the material on record, the learned trial Court was pleased to acquit the respondent/accused of the offence punishable under Section 138 of the Negotiable

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Aarti Palkar

2.ALP.87.18.doc

Instruments Act, 1881.

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It is seen from the evidence adduced on record that the applicant/original complainant had himself proved an agreement Exhibit 19. That agreement reflects that two post-dated cheques were received by the applicant/original complainant towards security for repayment of loan. Those cheques were bearing the date as 31.03.2013. Thus, the disputed cheque was obtained as a security for repayment of loan.

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It is also seen that the date of the cheque was changed from 31.03.2013 to 31.08.2013 and that is how it was presented for encashment to the banker on 22.11.2013. The learned trial Court on this background has correctly held that the cheque was not presented within the prescribed period as envisaged by Section 138 of the Negotiable Instruments Act, 1881. There was tamping of the negotiable instrument.

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Evidence of Sagar Khidkar, Branch Manager of IDBI Bank goes to show that an amount of Rs.97,000/- was transferred to the bank account of wife of the applicant/original complainant from time to time. In this view of the matter, it cannot be said that the

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Aarti Palkar

2.ALP.87.18.doc

cheque was issued for legally recovery debt.

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Case of the applicant/original complainant was to the effect that the amount of Rs.2 Lacs, which was given as a handloan to the respondent/accused was to be returned with Rs.1 Lac more and this case itself shows that the applicant/original complainant had lent the amount on interest.

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In this view of the matter, no fault can be found in the impugned Judgment and Order of acquittal of respondent/accused. No case for grant of leave as such is made out.

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The application is therefore rejected.

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(A.M.BADAR J.)

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Aarti Palkar

Mangesh Vithoba Chavan v. Suhas Shrikrishna Deshpande and Anr.

Case brief

What is this about?

What did the court decide?

Mangesh Vithoba Chavan v. Suhas Shrikrishna Deshpande and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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