The learned Magistrate has
considered the written advise/memo dated 31.10.2009
(Exhibit-12) and a letter dated 02.11.2009 of Bank of Baroda
(Exhibit-13). It has been found that the advise (Exhibit-12)
did not indicate as to which Bank had issued or who had
signed the same. It is found that PW-3, Ms. Violet E Das has
not identified the written advise (Exhibit-12) and she has not
deposed that the cheque was returned for insufficient funds.
The learned Magistrate has then referred to the evidence of
PW-5, Shri Anil Gaindhar, the Chief Manager of Bank of
Baroda, where the complainant is having an account. This
witness has stated on the basis of Statement of Account
(Exhibit-102), that the cheque was presented for payment on
31.10.2009 and was returned dishonoured for insufficient
funds on 02.11.2009 and this was so intimated to the
complainant on the same day. PW-5, Shri Anil Gaindhar has
stated that Exhibit-13, which is a letter from the Bank
intimating the complainant about dishonor of the cheque is
signed by Shri Kedar, the Chief Manager of the Bank. The
learned Magistrate has thereafter found that both the
Statements of Account (Exhibit-102) indicates that the cheque
bearing no. 510087 was returned dishonoured for insufficient
funds. However, it is held that the statement does not bear a
certificate as required under the Bankers' Book Evidence Act
and thus, cannot be read into evidence.
25. In my considered opinion, this is taking too
technical view of the matter. When the Chief Manager has
deposed that the cheque was dishonoured for insufficient funds
and it was so intimated to the complainant, it is difficult not to
believe the said witness for the reasons as stated by the
learned Magistrate. PW-4, Smt. Saiprithi Shirodkar has also
stated in categorical terms that the cheque was returned
dishonoured for insufficient funds. It is not possible to accept
that PW-4, Smt. Saiprithi Shirodkar and PW-5, Shri Anil
Gaindhar would fabricate a false Statement of Account, only to
help the complainant. Thus, it has to be held that the cheque
was dishonoured on account of insufficient funds. The point is
Print Page
considered the written advise/memo dated 31.10.2009
(Exhibit-12) and a letter dated 02.11.2009 of Bank of Baroda
(Exhibit-13). It has been found that the advise (Exhibit-12)
did not indicate as to which Bank had issued or who had
signed the same. It is found that PW-3, Ms. Violet E Das has
not identified the written advise (Exhibit-12) and she has not
deposed that the cheque was returned for insufficient funds.
The learned Magistrate has then referred to the evidence of
PW-5, Shri Anil Gaindhar, the Chief Manager of Bank of
Baroda, where the complainant is having an account. This
witness has stated on the basis of Statement of Account
(Exhibit-102), that the cheque was presented for payment on
31.10.2009 and was returned dishonoured for insufficient
funds on 02.11.2009 and this was so intimated to the
complainant on the same day. PW-5, Shri Anil Gaindhar has
stated that Exhibit-13, which is a letter from the Bank
intimating the complainant about dishonor of the cheque is
signed by Shri Kedar, the Chief Manager of the Bank. The
learned Magistrate has thereafter found that both the
Statements of Account (Exhibit-102) indicates that the cheque
bearing no. 510087 was returned dishonoured for insufficient
funds. However, it is held that the statement does not bear a
certificate as required under the Bankers' Book Evidence Act
and thus, cannot be read into evidence.
25. In my considered opinion, this is taking too
technical view of the matter. When the Chief Manager has
deposed that the cheque was dishonoured for insufficient funds
and it was so intimated to the complainant, it is difficult not to
believe the said witness for the reasons as stated by the
learned Magistrate. PW-4, Smt. Saiprithi Shirodkar has also
stated in categorical terms that the cheque was returned
dishonoured for insufficient funds. It is not possible to accept
that PW-4, Smt. Saiprithi Shirodkar and PW-5, Shri Anil
Gaindhar would fabricate a false Statement of Account, only to
help the complainant. Thus, it has to be held that the cheque
was dishonoured on account of insufficient funds. The point is
accordingly answered in the affirmative.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 24 OF 2013
Mrs. Sulekhabai Yeshwantrao Chowghule,
V
Shaik Vahid Jahangir alias Shaik Vaid,
CORAM:- C. V. BHADANG, J.
PRONOUNCED ON:- 7thAUGUST, 2015
Citation;2015 CRLJ 4824 Bom
By this appeal, the appellant is challenging the
acquittal of the first respondent from an offence punishable
under Section 138 of the Negotiable Instruments Act (the Act,
for short).
2. The brief facts necessary for the disposal of the
appeal may be stated thus:
That, the original complainant, Smt. Sulekhabai
Chowghule (since deceased) had given a hand loan of
Rs.30,00,000/- to the first respondent on 28.04.2009. The
complainant is having an account with the Lokmanya
Multipurpose Co-operative Credit Society Limited, Baina
Branch (the Credit Society, for short). The complainant had
requested the said Credit Society to issue a cheque to the first
respondent, debiting her Savings Bank Account bearing
Account No. 211. At her request, the said Credit Society
issued a cheque No. 843394 dated 28.04.2009, drawn on the
Oriental Bank of Commerce, in favour of the first respondent.
At the request of the Manager of the Credit Society, the
Oriental Bank of Commerce transferred a sum of
Rs.30,00,000/- to the account of the first respondent with
ICICI Bank Limited. The first respondent had executed a Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18),
in the favour of the complainant. Further, according to the
complainant, the loan amount was repayable on demand and
if, no demand is made within a maximum period of one month
i.e. on or before 28.05.2009. The first respondent had passed
a post dated cheque in favour of the complainant for
Rs.30,00,000/- on 28.05.2009, which was drawn on his
account with ICICI Bank Limited, Vasco Branch, with
instructions to present the said cheque for realisation, in the
event of failure of repayment. When the cheque was
deposited for realisation with Bank of Baroda, Vasco Branch,
on 31.10.2009, it was returned unpaid on account of
insufficient funds, to the complainant, on 02.11.2009. The
complainant thereafter issued a notice to the first respondent
on 19.11.2009, to which a reply was sent by the first
respondent on 05.12.2009. While denying the allegation that
the first respondent had obtained a hand loan of
Rs.30,00,000/-, it was claimed that the first respondent had
approached for a loan to the said Credit Society at Baina, and
the Manager, Shri Madhukar Khot had asked for a cheque, as a
security for the loan. Thus, it was contended that the subject
cheque was given as security for sanction of the loan, which
never materialized. Thus, it was denied that the cheque was
issued towards repayment of loan of Rs.30,00,000/- to the
complainant. Thus, a complaint under Section 138 of the
Act, came to be filed before the learned Judicial Magistrate
First Class, Vasco-da-Gama.
3. At the trial, the complainant, Smt. Sulekhabai
Chowghule, examined herself (PW-1) alongwith Shri Madhukar
Khot (PW-2), the Manager of the said Credit Society, Ms. Violet
E. Das (PW-3), Manager of the Oriental Bank of Commerce and
Ms. Saiprithi Shirodkar (PW-4), Branch Manager of the ICICI
Bank, Vasco Branch and also Shri Anil Gaindhar (PW-5), the
Chief Manager of Bank of Baroda. The complainant also
produced certain documents, including the Statement of
Account of the ICICI Bank of the first respondent, the subject
cheque, the notice and her Statement of Account with Bank of
Baroda, Vasco Branch.
4. The first respondent did not lead any defence
evidence.
5. The learned Magistrate framed three points for
determination, as under:-
(a) Whether it is proved that the cheque was
issued towards a legally enforceable debt ?
(b) Whether it is proved that the cheque was
returned dishonoured for insufficient funds ?
and CRIA No. 24 OF 2013
6
(c) Whether a demand in writing was made by
the complainant to the accused ?
6. The learned Magistrate answered the points at (a)
and (b) in the negative and point at (c) in the affirmative. In
the face of the finding against point nos. (a) and (b), the first
respondent came to be acquitted. That is challenged by the
original complainant before this Court. Smt. Sulekhabai
Chowghule, the original appellant died during the pendency of
the appeal and the appeal is prosecuted by one of her heirs,
Shri Jagdeep Chowghule. Respondent nos. 3 to 7 are the rest
of the legal representatives of Smt. Sulekhabai Chowghule.
7. I have heard Shri Usgaonkar, the learned Senior
Counsel for the appellant and Shri De Sa, the learned Counsel
for the first respondent. None for the rest of the respondents.
With the assistance of the learned Counsel, I have perused the
entire evidence and the impugned judgment.
8. It is submitted by Shri Usgaonkar, the learned
Senior Counsel for the appellant that the entire transaction
was effected through RTGS and is reflected in the accounts,
both of the complainant and the first respondent. He
submitted that the first respondent has also executed a Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18).
It is submitted that the complainant had also examined the
Branch Manager of the ICICI Bank, as also the Chief Manager
of Bank of Baroda. It is submitted that thus, there is
overwhelming evidence to show that the amount of
Rs.30,00,000/- was transferred from the account of the
complainant to the account of the first respondent. It is
submitted that, in the face of such a evidence, the learned
Magistrate was clearly in error in holding that the cheque was
not issued towards a legally enforceable debt. It is submitted
that the first respondent has not denied the receipt of the
amount at any stage, including in the notice reply (Exhibit-15).
It is submitted that the defence set up by the first respondent,
that he had approached the Credit Society with a request for
grant of loan and the cheque was given as security for such a
loan being granted, which never materialized, is improbable.
It is submitted that the first respondent has failed to show as
to how, the amount of Rs.30,00,000/- was credited in his
account. It is submitted that contrary to the defence, about
PW-2, Shri Madhukar Khot obtaining the cheque as security for
a loan, to be granted, during the cross examination of PW-2,
Shri Madhukar Khot, it was suggested that he is not the
Branch Manager of the Credit Society. It is submitted that
although, the learned Magistrate has noticed some discrepancy
in the evidence of PW-1, Smt. Sulekhabai Chowghule, vis-a-vis
the evidence of PW-2, Shri Madhukar Khot, the discrepancy
cannot be said to be on material aspect. It is submitted that
the reasoning by the learned Magistrate that Mohim, (who is
the son of the Driver of the complainant and a friend of the
first respondent) having not been examined, is also
unsustainable. It is submitted that reliance placed by the
learned Magistrate on Section 2(8) of the Bankers' Book
Evidence Act, in refusing to place reliance on the Statement of
Account (Exhibit-68) is improper, particularly when the first
respondent has not denied the receipt of Rs.30,00,000/-, as
having been transferred to his account and in the face of the
evidence of the Branch Managers of Bank of Baroda and ICICI
Bank.
9. It is next submitted that reliance placed by the
learned Magistrate on Section 2(l)(a) of the Goa Money
Lenders' Act, 2001 (the Act of 2001, for short) and the
decision of this Court, in the case of Kedar Ramakant
Kakodkar Vs. Auduth Timblo, in Civil Revision Application
No. 17/2009 dated 05.02.2010, is also misplaced. The learned
Senior Counsel has also placed reliance on the decision of this
Court in M/s Armstrong Builders and Developers Vs. Mr.
Vishvanath Naik, reported in 2007(1) ALL MR 167, in
order to submit that a solitary instance of giving a loan does
not make a person a money lender. It is submitted that thus,
the provisions of the Act of 2001, were not attracted. It is
submitted that the finding of the learned Magistrate on point
(b) is also not correct. The learned Senior Counsel has relied
upon the decision of the Hon'ble Apex Court, in the case of
Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441,
to submit that, once the signature on the cheque is admitted,
a presumption arises in favour of the complainant, which can
be displaced only by showing existence of some material to the
contrary. It is submitted that the defence as set up by the first
respondent, in the notice reply is improbable. It is submitted
that the said defence also does not find place in statement
under Section 313 of Cr.P.C. Thus, the presumption in favour
of the complainant, cannot be said to be rebutted in this case.
It is submitted that the view taken by the learned Magistrate is
an impossible view and needs interference.
10. On the contrary, it is submitted by Shri De Sa, the
learned Counsel for the first respondent that the defence set
up in the notice reply (Exhibit-15), about the first respondent
approaching the said Credit Society for loan and the Manager,
Shri Madhukar Khot having asked for a cheque, as security is
probable, on the basis of the evidence led by the complainant.
The learned Counsel has taken me through the evidence of
PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri Madhukar
Khot, in order to show that PW-1, Smt. Sulekhabai Chowghule
has admitted that the cheque was given by the first
respondent as a security. The learned Counsel has referred to
the cross examination of PW-1, Smt. Sulekhabai Chowghule, in
which she has admitted that she had given the loan to one
Mohim, who is the son of the driver of the complainant. It is
submitted that in the face of such admission, non examination
of Mohim, is material. The learned Counsel has referred to
certain discrepancies between the evidence of PW-1, Smt.
Sulekhabai Chowghule and PW-2, Shri Madhukar Khot, in order
to submit that the evidence is not consistent to show that the
complainant had advanced an amount of Rs.30,00,000/-, to
the first respondent as claimed. It is submitted that after PW-
1, Smt. Sulekhabai Chowghule gave admission, about the loan
being granted to Mohim and not the first respondent, there
was no re-examination of PW-1, Smt. Sulekhabai Chowghule
to clarify this aspect. The learned Counsel submitted that
under Section 2(k)(x) of the Act of 2001, the transaction
would be covered by the provisions of the said Act as a money
lending transaction, which is prohibited in the absence of a
license. It is submitted that thus, it has been rightly held that
the complainant has failed to establish that the cheque was in
discharge of a legally enforceable debt or liability. The learned
Counsel would submit that the scope of an appeal against
acquittal is essentially limited. This Court while examining
acquittal cannot substitute its view, when two views are
equally possible. It is submitted that the view taken by the
learned Magistrate is a plausible view, which does not need
interference.
11. I have given my anxious consideration to the rival
circumstances and the submissions made. The following
points arise from my determination in this case:
POINT FINDING
(i) Whether the subject cheque
was issued towards a legally
enforceable debt ?
In the Affirmative
(ii) Whether the cheque was
returned dishonoured on
account of insufficient funds ?
In the Affirmative
(iii) Whether the impugned
judgment needs interference ? In the Affirmative
(iv) What order ? As per final order
12. Point No. (i): At the outset, it may be mentioned
that the first respondent has not denied his signature on the
subject cheque. The first respondent has also not denied that
an amount of Rs.30,00,000/- was transferred from the account
of the complainant to the account of the first respondent with
ICICI Bank at Vasco. During the course of argument at Bar, in
reply to specific query, the learned Counsel for the first
respondent did not dispute the signature/execution of the Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18),
by the first respondent. The learned Magistrate in paragraph
18 of the judgment has held that the presumption under
Section 118(a) and Section 139 of the Act can be drawn in
favour of the complainant. The learned Magistrate has also
noticed the decision of the Hon'ble Supreme Court, in the case
of Rangappa (supra), holding that the presumption mandated
by Section 139 of the Act includes a presumption of the
existence of a legally enforceable debt or liability, The learned
Magistrate has also noticed that the first respondent has not
even suggested that the signature on the cheque was not his
or that it was not put by him. Thus, it can safely be said that
a presumption under Section 118(a) and Section 139 of the
Act arises in this case in favour of the complainant. It is true
that such a presumption is a rebuttable one. It is not
necessary for the first respondent/accused to lead any defence
evidence in order to rebut the presumption. The accused can
do so on the basis of the evidence led on behalf of the
complainant. In doing so, it has to be shown that the defence
raised by the first respondent/accused is probable. Before
adverting to the defence, it would be necessary to look into
the evidence of PW-3, Ms. Violet E Das and PW-4, Smt.
Saiprithi Shirodkar.
13. PW-3, Ms. Violet E Das is the Manager of Oriental
Bank of Commerce. She has stated that the letter (Exhibit-20)
was issued at the request of the said Credit Society. She has
stated that the RTGS entry was effected on instructions given
by authorised person.
PW-4, Smt. Saiprithi Shirodkar is the Branch
Manager of the ICICI Bank at Vasco. She has stated that the
first respondent is having an account with the said Bank. She
states that the amount of Rs.30,00,000/- was credited to the
said account on 28.04.2009 by RTGS from Oriental Bank of
Commerce from the account of the Credit Society. She has
produced the Statement of Account (Exhibit-68), which reflects
the deposit of Rs.30,00,000/- in the account of the first
respondent on 28.04.2009.
Thus, from the evidence of PW-3, Ms. Violet E Das,
and PW-4, Smt. Saiprithi Shirodkar and the Statement of
Accounts (Exhibits-20 and 68), it is clear that an amount of
Rs.30,00,000/- has been credited to the account of the first
respondent.
14. The perusal of the impugned judgment would show
that the learned Magistrate has considered the evidence of
PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri Madhukar
Khot, from paragraph 19 onwards. The learned Magistrate has
noticed certain discrepancies in their evidence inter se. It has
been found from the cross examination of PW-1, Smt.
Sulekhabai Chowghule that the first respondent had not
requested personally, for the loan. She admitted that she was
not present when the loan was given to the first respondent.
She has stated that Shri Madhukar Khot (PW-2) and one
Mohim, the son of her driver had requested to give the loan to
the first respondent. She also stated that she had given the
loan to Mohim. On the basis of this admission, the learned
Magistrate has found that the case of the complainant of
having given hand loan to the first respondent is falsified. The
learned Magistrate has then noticed, the evidence of PW-2,
Shri Madhukar Khot, in which the witness has stated that the
first respondent was introduced to him by one Mohim Khawja.
PW-2, Shri Madhukar Khot did not have any family or business
relations with the first respondent. He did not know why the
loan was given by the complainant. He did not request the
complainant to give the loan and the loan was not given on his
request. This part was found to be discrepant with the
evidence of PW-1, Smt. Sulekhabai Chowghule. The learned
Magistrate has then found that in such circumstances, Mohim
was “extremely material witness” and in the absence of his
examination, the role of Mohim in the entire transaction has
“remained unknown”.
It may be mentioned that although at one stage,
the complainant had stated that she had given a loan to
Mohim, in the further cross examination she has specifically
stated that the amount was given to the first respondent,
although, she admits that there was no commercial transaction
between the complainant and the first respondent. It is trite
that the evidence of any witness has to be read as a whole and
it is not possible to pick and choose certain part of evidence.
The learned Magistrate has then went upon
examining the evidence of PW-1, Smt. Sulekhabai Chowghule
and PW-2, Shri Madhukar Khot, in order to find that the case
of the complainant, is falsified. It has also been held that the
complainant is a housewife and as such, there was a doubt
whether the complainant had at all met the first respondent
and this according to the learned Magistrate “gives probability
to the stand taken by the accused in his reply”. The learned
Magistrate has noticed that the complainant had stated that
she inquired with the ICICI Bank if, the first respondent was
having any account with it, prior to giving loan to him. The
learned Magistrate has observed that it is unlikely as under the
Rules as to secrecy, the Bank would not divest any such
information of its constituents. It has been found that the
“safeguard allegedly taken by the complainant, prior to giving
the loan to the accused stands disproved”. It has also been
found that the complainant had admitted that the first
respondent is not having friendly relations or business
relations with her. Therefore, “a doubt arises that such a huge
sum would be advanced to an unknown person”. The learned
Magistrate has noticed some other aspect in the evidence,
about absence of any written instructions, to debit the amount,
which in the opinion of the Magistrate would have been a link
to connect the amount debited from the account of the
complainant and the amount credited in the account of the
first respondent by the Credit Society. The learned Magistrate
has then relied upon Section 2(8) of the Banker's Book
Evidence Act, to discard the Statement of Account (Exhibit-
68), for want of certificate as contemplated under the said Act.
The learned Magistrate has then found that PW-1, Smt.
Sulekhabai Chowghule has admitted that she was not present,
when the transaction was entered into and has therefore,
found that PW-2, Shri Madhukar Khot had exceeded his role as
a Manager in getting the documents executed. In the opinion
of the Magistrate, a question also arises “as to why the
complainant would have asked the Manager that the amount
advanced by her to the accused was not paid, if Shri Madhukar
Khot was only acting as a Manager to the Bank”. This
according to the learned Magistrate probalises the stand taken
by the first respondent that the cheque was issued, towards
security for a loan, which the first respondent had sought from
the Credit Society.
15. I have carefully gone through the reasoning
articulated by the learned Magistrate. It is true that there is
no clear evidence to show that the first respondent was so well
acquainted to the complainant, except the claim that he was
the friend of one Mohim, who is son of the driver of the
complainant. It can also be seen that there are certain
contradictions in the evidence of PW-1, Smt. Sulekhabai
Chowghule vis-a-vis the evidence of PW-2, Shri Madhukar
Khot. However, all these aspects would fall into insignificance
in the face of clear documentary evidence to show that the
amount of Rs.30,00,000/- was transferred from the account of
the complainant, to the account of the first respondent. In
addition to this, there are also documents in the nature of
Loan Security Bond (Exhibit-17) and a Promissory Note
(Exhibit-18), which are also not disputed by the first
respondent. The effect of all this evidence, coupled with the
absence of denial, would clearly fortify the statutory
presumption available to the complainant as the signature on
the cheque is not disputed.
16. The learned Counsel for the first respondent has
stated that the genesis of the entire transaction in this case is
shrouded in mystery. That coupled with the discrepancies in
the evidence of PW-1, Smt. Sulekhabai Chowghule and PW-2,
Shri Madhukar Khot, would probablise the defence set up by
the first respondent. I would tend to disagree. It is true that
evidence of PW-1, Smt. Sulekhabai Chowghule would show
that PW-2, Shri Madhukar Khot had taken active part in
transfer of the amount to the account of the first respondent,
as also execution of the documents namely, Loan Security
Bond (Exhibit-17) and a Promissory Note (Exhibit-18).
However, that by itself would be insufficient to say that the
defence is probablised. It may not be out of place to mention
that, the defence that, Shri Madhukar Khot had insisted for a
cheque, when the first respondent had approached the Credit
Society for loan, is not even put to PW-2, Shri Madhukar Khot.
That also does not find place in the statement of the first
respondent under Section 313 of Cr.P.C., The first respondent
only states that the case is filed at the instance of Shri
Madhukar Khot, the Branch Manager of the Credit Society.
Thus, in my considered view, the discrepancies found in the
evidence of PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri
Madhukar Khot cannot over ride the evidence of PW-3, Ms.
Violet E Das, PW-4, Smt. Saiprithi Shirodkar. The Statement
of Account (Exhibit 68), which clearly show that the amount of
Rs.30,00,000/- was transferred to the account of the first
respondent. It is clearly established that the amount of
Rs.30,00,000/- was transferred to the account of the first
respondent, from the account of the complainant.
17. Reliance placed by the learned Magistrate on
Section 2(8) of the Bankers' Book Evidence Act is also
misplaced. The said Section defines certified copy, while
envisages a certificate in the prescribed format being
appended. Section 2A provides for conditions in the printout.
The learned Magistrate has found that in the absence of
the certificate, the Statement of Account (Exhibit-68) cannot
be relied upon. We have on record the Statement of Account
No. 211, of the complainant with the Credit Society (Exhibit-
16) and a Certificate dated 28.04.2009 (Exhibit-19), issued by
the Branch Manager of the Credit Society certifying that
Rs.30,00,000/- has been transferred in favour of the first
respondent, by debiting the amount to the Saving Bank
Account No. 211. In my considered view, this evidence cannot
be brushed aside merely, for the absence of the certificate as
contemplated in the Bankers' Book Evidence Act. (See AIR
1994 SC 1644, in the case of State Bank of India Vs.
Yumnam Gouramani Singh).
18. This takes me to the provisions of the Goa Money
Lenders Act, 2001. Section 2(k)(x) of the said Act of 2001
reads thus:
“2(k) - “loan” means an advance at interest,
whether of money or in kind, but does not
include —
(x) an advance of any sum exceeding rupees
three thousand made on the basis of a
Negotiable Instrument as defined in the
Negotiable Instruments Act, 1881 (Central
Act 26 of 1881), other than a promissory
note.” CRIA No. 24 OF 2013
22
19. Section 2(l)(a), which defines a “money lender”
reads thus:
“2(l) “money-lender” means,—
(i) an individual; or
(ii) an undivided Hindu Family; or
(iii) a company; or
(iv) an unincorporated body of
individuals, who or which—
(a) carries on business of money-lending in
the State; or does any activity of lending of
any finance.”
20. It cannot be disputed that the evidence of PW-2,
Shri Madhukar Khot, as also the Loan Security Bond (Exhibit-
17) and a Promissory Note (Exhibit-18), would show that the
amount was to carry interest at the rate of 18% per annum.
The question is whether such a transaction would come within
the mischief of Act of 2001. In other words, can it be said that
in the absence of a license, the transaction would cease to be
a legally enforceable debt or liability.
21. The question precisely turns upon the interpretation
of Section 2(l)(a) of the Act of 2001. The learned Magistrate
has relied upon the decision of this Court in the case of Kedar
Ramakant Kakodkar (supra), in order to hold that the words
in Section 2(l)(a) has widened the scope of activity of lending
of finance, so as to include within its sweep each and every
activity of such lending. Section 14 of the Act of 2001 lays
down that no decree shall be passed in any suit under the Act,
unless, the Court is satisfied that at the time, when the loan or
any part thereof, to which the suit relates was advanced, the
money lender held a valid license and if, the Court is satisfied
that the money lender did not hold a valid license, it shall
dismiss the suit. In the case of Kedar Ramakant Kakodkar
(supra), the order challenged was the one of rejection of plaint
under Order VII Rule 11 of the Code of Civil Procedure. The
suit was filed for recovery of the sum advanced to the
defendant under a loan agreement. The Civil Court in that
case had concluded that the averments in the plaint do not
bring out the fact that the plaintiff was a money lender, within
the meaning of Section 2(l) of the Money Lenders' Act. This
Court after examining the provisions of a cognate legislation,
namely, the Bombay Money Lenders' Act 1946 held thus in
paragraph 16:- CRIA No. 24 OF 2013
24
“16. Consequently, the plaint which refers
not to a single act of giving a loan, but
several such acts in absence of any specific
pleadings regarding the nature or object of
the business carried on by the plaintiff
purports to clothe the plaintiff with an
occupation or pursuit of lending finances, an
activity in which he purports to be active.”
It can thus be seen that in the case of Kedar
Ramakant Kakodkar (supra), the Court was concerned with
a matter, where there were multiple transactions.
22. In the case of M/s Armstrong Builders and
Developers (supra), this Court was considering an appeal
against acquittal, under Section 138 of the N.I. Act, as in the
present case. In that case also, there was a solitary
transaction. This Court specifically interpreted, the term
“activity”, as appearing in Section 2(l)(a) of the Act of 2001
and held thus in paragraph 8 of the judgment:
“8. The complainant was also cross
examined on the aspect of money lending.
In fact in the cross examination of the
complainant it was impliedly admitted that
the amount which was advanced to the
accused was not connected with the
business of the accused, the complainant's
business being that of a builder and
developer. The complainant had
categorically stated that he was not a money
lender nor did he have license to lend
money. Picking up the expression from para
3 of the complaint, that the complainant had
given a loan to the accused, learned Counsel
on behalf of the accused, submits that such
a loan was not recoverable in the light of the
provisions of the Goa Money Lenders Act,
2001. The learned Counsel on behalf of the
accused has particularly referred to the
expression activity in sub-clause (a) of
Clause (l) of Section 2 of the said Act and
has submitted that even a single loan would
come within the purview of the expression
"activity" appearing in the said sub-clause(a)
of Clause (l) of Section 2 of the Act. Apart
from the denial by the complainant that he
is the money lender, the accused produced
no evidence to bring on record to show that
the complainant was carrying on business of
money lending or any activity of lending of
any finance. The expression "activity" is not
defined under the said Act and the ordinary
dictionary meaning as per Black's Law
Dictionary activity is an occupation or
pursuit in which a person is active, and, as
per Oxford English Dictionary, it is the
condition in which things are happening or
being done. In other words, the very subject
of activity suggests continuity and therefore
a single act of giving a loan would not come
within the definition of sub clause(a) of
clause(l) of Section 2 of the said Act. In this
context, reference to the case of Rotakonda
Raghu Naidu Vs. Kolla S. Prasad (2004
(4) Crimes 295) could be made. The learned
Single Judge of the Andhra Pradesh High
Court referring to another decision of the
Division Bench of that Court observed that
"money lender" envisages only those
persons whose regular business is to
advance monies and not those who advance
monies casually. A solitary instance of giving
a loan does not make a person a money
lender. That being the position, the
provisions of the Goa Money Lenders Act,
2001 would be of no assistance to the case
of the accused.”
23. It can thus, be seen, that this Court after
consideration of the import of the expression “activity” has
held that a solitary instance of giving a loan does not make a
person “Money Lender”. It was held that provisions of the Goa
Money Lenders' Act of 2001 would be of no assistance to the
case of the accused. The facts in the present case are
similar/identical to the case of M/s Armstrong Builders and
Developers (supra). I am in respectful agreement that the
view expressed by a learned Single Judge of this Court in the
case of M/s Armstrong Builders and Developers (supra)
that a solitary instance of giving a loan would not make a
person a “Money Lender”. Thus, the provisions of Section 14
of the Act of 2001, cannot come to the aid of the first
respondent in this case. For these reasons, I hold that the
finding recorded by the learned Magistrate in this regard is
clearly not sustainable. The point is accordingly answered in
the affirmative.
24. Point No. (ii): The learned Magistrate has
considered the written advise/memo dated 31.10.2009
(Exhibit-12) and a letter dated 02.11.2009 of Bank of Baroda
(Exhibit-13). It has been found that the advise (Exhibit-12)
did not indicate as to which Bank had issued or who had
signed the same. It is found that PW-3, Ms. Violet E Das has
not identified the written advise (Exhibit-12) and she has not
deposed that the cheque was returned for insufficient funds.
The learned Magistrate has then referred to the evidence of
PW-5, Shri Anil Gaindhar, the Chief Manager of Bank of
Baroda, where the complainant is having an account. This
witness has stated on the basis of Statement of Account
(Exhibit-102), that the cheque was presented for payment on
31.10.2009 and was returned dishonoured for insufficient
funds on 02.11.2009 and this was so intimated to the
complainant on the same day. PW-5, Shri Anil Gaindhar has
stated that Exhibit-13, which is a letter from the Bank
intimating the complainant about dishonor of the cheque is
signed by Shri Kedar, the Chief Manager of the Bank. The
learned Magistrate has thereafter found that both the
Statements of Account (Exhibit-102) indicates that the cheque
bearing no. 510087 was returned dishonoured for insufficient
funds. However, it is held that the statement does not bear a
certificate as required under the Bankers' Book Evidence Act
and thus, cannot be read into evidence.
25. In my considered opinion, this is taking too
technical view of the matter. When the Chief Manager has
deposed that the cheque was dishonoured for insufficient funds
and it was so intimated to the complainant, it is difficult not to
believe the said witness for the reasons as stated by the
learned Magistrate. PW-4, Smt. Saiprithi Shirodkar has also
stated in categorical terms that the cheque was returned
dishonoured for insufficient funds. It is not possible to accept
that PW-4, Smt. Saiprithi Shirodkar and PW-5, Shri Anil
Gaindhar would fabricate a false Statement of Account, only to
help the complainant. Thus, it has to be held that the cheque
was dishonoured on account of insufficient funds. The point is
accordingly answered in the affirmative.
26. Point No. (iii): The scope and ambit of an appeal
against acquittal is no longer res intriga. It is not well settled
that although, in an appeal against acquittal, the Appellate
Court cannot justifiably substitute its view, in the place by the
one taken by the lower Court, when two views are equally
possible. However, this would apply only where two views are
equally and reasonably possible, on the basis of the evidence
led. If, the view recorded by the learned Magistrate is found to
be perverse or in the nature of impossible view, the Appellate
Court would not only be justified, but duty bound to step in.
As noticed earlier, the finding recorded by the learned CRIA No. 24 OF 2013
30
Magistrate in holding that the subject cheque was not issued
towards discharge of a legally enforceable debt or liability is
clearly against the weight of the evidence in the form of
transfer of an amount of Rs.30,00,000/-. The reliance placed
on the provision of Section 2(8) of the Bankers' Book Evidence
Act and on the provisions of the Act of 2001, is also misplaced.
Thus, I find that the impugned judgment needs interference.
The point is accordingly answered in the affirmative.
27. I have heard, the first respondent and Shri De Sa,
the learned Counsel appearing for the first respondent, as also
Shri Usgaonkar, the learned Senior Counsel for the appellant
on the point of sentence.
28. It is submitted by Shri De Sa, the learned Counsel
for the first respondent that the first respondent is the sole
earning member in the family and therefore, leniency may be
shown while awarding the sentence. It is submitted that some
time may be granted to surrender.
29. Having regard to the above circumstances, and
having heard the learned Counsel for the parties, the following
order is passed:
(i) The appeal accordingly succeeds and is
allowed. The impugned judgment of
acquittal is hereby set aside. The first
respondent is hereby convicted for the
offence punishable under Section 138 of
the Negotiable Instruments Act.
(ii) The first respondent is sentenced to
suffer simple imprisonment for a period of
three months and to pay compensation of
Rs.30,00,000/- and in default to suffer
further simple imprisonment, for a period
of three months.
(iii) The first respondent is granted one
week's time to surrender before the
learned Magistrate. In the event of failure,
the learned Magistrate shall take steps for
getting the first respondent apprehended,
for serving the sentence.
(iv) The appeal is disposed of, in the
aforesaid terms.
C. V. BHADANG,J.
CRIMINAL APPEAL NO. 24 OF 2013
Mrs. Sulekhabai Yeshwantrao Chowghule,
V
Shaik Vahid Jahangir alias Shaik Vaid,
CORAM:- C. V. BHADANG, J.
PRONOUNCED ON:- 7thAUGUST, 2015
Citation;2015 CRLJ 4824 Bom
By this appeal, the appellant is challenging the
acquittal of the first respondent from an offence punishable
under Section 138 of the Negotiable Instruments Act (the Act,
for short).
2. The brief facts necessary for the disposal of the
appeal may be stated thus:
That, the original complainant, Smt. Sulekhabai
Chowghule (since deceased) had given a hand loan of
Rs.30,00,000/- to the first respondent on 28.04.2009. The
complainant is having an account with the Lokmanya
Multipurpose Co-operative Credit Society Limited, Baina
Branch (the Credit Society, for short). The complainant had
requested the said Credit Society to issue a cheque to the first
respondent, debiting her Savings Bank Account bearing
Account No. 211. At her request, the said Credit Society
issued a cheque No. 843394 dated 28.04.2009, drawn on the
Oriental Bank of Commerce, in favour of the first respondent.
At the request of the Manager of the Credit Society, the
Oriental Bank of Commerce transferred a sum of
Rs.30,00,000/- to the account of the first respondent with
ICICI Bank Limited. The first respondent had executed a Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18),
in the favour of the complainant. Further, according to the
complainant, the loan amount was repayable on demand and
if, no demand is made within a maximum period of one month
i.e. on or before 28.05.2009. The first respondent had passed
a post dated cheque in favour of the complainant for
Rs.30,00,000/- on 28.05.2009, which was drawn on his
account with ICICI Bank Limited, Vasco Branch, with
instructions to present the said cheque for realisation, in the
event of failure of repayment. When the cheque was
deposited for realisation with Bank of Baroda, Vasco Branch,
on 31.10.2009, it was returned unpaid on account of
insufficient funds, to the complainant, on 02.11.2009. The
complainant thereafter issued a notice to the first respondent
on 19.11.2009, to which a reply was sent by the first
respondent on 05.12.2009. While denying the allegation that
the first respondent had obtained a hand loan of
Rs.30,00,000/-, it was claimed that the first respondent had
approached for a loan to the said Credit Society at Baina, and
the Manager, Shri Madhukar Khot had asked for a cheque, as a
security for the loan. Thus, it was contended that the subject
cheque was given as security for sanction of the loan, which
never materialized. Thus, it was denied that the cheque was
issued towards repayment of loan of Rs.30,00,000/- to the
complainant. Thus, a complaint under Section 138 of the
Act, came to be filed before the learned Judicial Magistrate
First Class, Vasco-da-Gama.
3. At the trial, the complainant, Smt. Sulekhabai
Chowghule, examined herself (PW-1) alongwith Shri Madhukar
Khot (PW-2), the Manager of the said Credit Society, Ms. Violet
E. Das (PW-3), Manager of the Oriental Bank of Commerce and
Ms. Saiprithi Shirodkar (PW-4), Branch Manager of the ICICI
Bank, Vasco Branch and also Shri Anil Gaindhar (PW-5), the
Chief Manager of Bank of Baroda. The complainant also
produced certain documents, including the Statement of
Account of the ICICI Bank of the first respondent, the subject
cheque, the notice and her Statement of Account with Bank of
Baroda, Vasco Branch.
4. The first respondent did not lead any defence
evidence.
5. The learned Magistrate framed three points for
determination, as under:-
(a) Whether it is proved that the cheque was
issued towards a legally enforceable debt ?
(b) Whether it is proved that the cheque was
returned dishonoured for insufficient funds ?
and CRIA No. 24 OF 2013
6
(c) Whether a demand in writing was made by
the complainant to the accused ?
6. The learned Magistrate answered the points at (a)
and (b) in the negative and point at (c) in the affirmative. In
the face of the finding against point nos. (a) and (b), the first
respondent came to be acquitted. That is challenged by the
original complainant before this Court. Smt. Sulekhabai
Chowghule, the original appellant died during the pendency of
the appeal and the appeal is prosecuted by one of her heirs,
Shri Jagdeep Chowghule. Respondent nos. 3 to 7 are the rest
of the legal representatives of Smt. Sulekhabai Chowghule.
7. I have heard Shri Usgaonkar, the learned Senior
Counsel for the appellant and Shri De Sa, the learned Counsel
for the first respondent. None for the rest of the respondents.
With the assistance of the learned Counsel, I have perused the
entire evidence and the impugned judgment.
8. It is submitted by Shri Usgaonkar, the learned
Senior Counsel for the appellant that the entire transaction
was effected through RTGS and is reflected in the accounts,
both of the complainant and the first respondent. He
submitted that the first respondent has also executed a Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18).
It is submitted that the complainant had also examined the
Branch Manager of the ICICI Bank, as also the Chief Manager
of Bank of Baroda. It is submitted that thus, there is
overwhelming evidence to show that the amount of
Rs.30,00,000/- was transferred from the account of the
complainant to the account of the first respondent. It is
submitted that, in the face of such a evidence, the learned
Magistrate was clearly in error in holding that the cheque was
not issued towards a legally enforceable debt. It is submitted
that the first respondent has not denied the receipt of the
amount at any stage, including in the notice reply (Exhibit-15).
It is submitted that the defence set up by the first respondent,
that he had approached the Credit Society with a request for
grant of loan and the cheque was given as security for such a
loan being granted, which never materialized, is improbable.
It is submitted that the first respondent has failed to show as
to how, the amount of Rs.30,00,000/- was credited in his
account. It is submitted that contrary to the defence, about
PW-2, Shri Madhukar Khot obtaining the cheque as security for
a loan, to be granted, during the cross examination of PW-2,
Shri Madhukar Khot, it was suggested that he is not the
Branch Manager of the Credit Society. It is submitted that
although, the learned Magistrate has noticed some discrepancy
in the evidence of PW-1, Smt. Sulekhabai Chowghule, vis-a-vis
the evidence of PW-2, Shri Madhukar Khot, the discrepancy
cannot be said to be on material aspect. It is submitted that
the reasoning by the learned Magistrate that Mohim, (who is
the son of the Driver of the complainant and a friend of the
first respondent) having not been examined, is also
unsustainable. It is submitted that reliance placed by the
learned Magistrate on Section 2(8) of the Bankers' Book
Evidence Act, in refusing to place reliance on the Statement of
Account (Exhibit-68) is improper, particularly when the first
respondent has not denied the receipt of Rs.30,00,000/-, as
having been transferred to his account and in the face of the
evidence of the Branch Managers of Bank of Baroda and ICICI
Bank.
9. It is next submitted that reliance placed by the
learned Magistrate on Section 2(l)(a) of the Goa Money
Lenders' Act, 2001 (the Act of 2001, for short) and the
decision of this Court, in the case of Kedar Ramakant
Kakodkar Vs. Auduth Timblo, in Civil Revision Application
No. 17/2009 dated 05.02.2010, is also misplaced. The learned
Senior Counsel has also placed reliance on the decision of this
Court in M/s Armstrong Builders and Developers Vs. Mr.
Vishvanath Naik, reported in 2007(1) ALL MR 167, in
order to submit that a solitary instance of giving a loan does
not make a person a money lender. It is submitted that thus,
the provisions of the Act of 2001, were not attracted. It is
submitted that the finding of the learned Magistrate on point
(b) is also not correct. The learned Senior Counsel has relied
upon the decision of the Hon'ble Apex Court, in the case of
Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441,
to submit that, once the signature on the cheque is admitted,
a presumption arises in favour of the complainant, which can
be displaced only by showing existence of some material to the
contrary. It is submitted that the defence as set up by the first
respondent, in the notice reply is improbable. It is submitted
that the said defence also does not find place in statement
under Section 313 of Cr.P.C. Thus, the presumption in favour
of the complainant, cannot be said to be rebutted in this case.
It is submitted that the view taken by the learned Magistrate is
an impossible view and needs interference.
10. On the contrary, it is submitted by Shri De Sa, the
learned Counsel for the first respondent that the defence set
up in the notice reply (Exhibit-15), about the first respondent
approaching the said Credit Society for loan and the Manager,
Shri Madhukar Khot having asked for a cheque, as security is
probable, on the basis of the evidence led by the complainant.
The learned Counsel has taken me through the evidence of
PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri Madhukar
Khot, in order to show that PW-1, Smt. Sulekhabai Chowghule
has admitted that the cheque was given by the first
respondent as a security. The learned Counsel has referred to
the cross examination of PW-1, Smt. Sulekhabai Chowghule, in
which she has admitted that she had given the loan to one
Mohim, who is the son of the driver of the complainant. It is
submitted that in the face of such admission, non examination
of Mohim, is material. The learned Counsel has referred to
certain discrepancies between the evidence of PW-1, Smt.
Sulekhabai Chowghule and PW-2, Shri Madhukar Khot, in order
to submit that the evidence is not consistent to show that the
complainant had advanced an amount of Rs.30,00,000/-, to
the first respondent as claimed. It is submitted that after PW-
1, Smt. Sulekhabai Chowghule gave admission, about the loan
being granted to Mohim and not the first respondent, there
was no re-examination of PW-1, Smt. Sulekhabai Chowghule
to clarify this aspect. The learned Counsel submitted that
under Section 2(k)(x) of the Act of 2001, the transaction
would be covered by the provisions of the said Act as a money
lending transaction, which is prohibited in the absence of a
license. It is submitted that thus, it has been rightly held that
the complainant has failed to establish that the cheque was in
discharge of a legally enforceable debt or liability. The learned
Counsel would submit that the scope of an appeal against
acquittal is essentially limited. This Court while examining
acquittal cannot substitute its view, when two views are
equally possible. It is submitted that the view taken by the
learned Magistrate is a plausible view, which does not need
interference.
11. I have given my anxious consideration to the rival
circumstances and the submissions made. The following
points arise from my determination in this case:
POINT FINDING
(i) Whether the subject cheque
was issued towards a legally
enforceable debt ?
In the Affirmative
(ii) Whether the cheque was
returned dishonoured on
account of insufficient funds ?
In the Affirmative
(iii) Whether the impugned
judgment needs interference ? In the Affirmative
(iv) What order ? As per final order
12. Point No. (i): At the outset, it may be mentioned
that the first respondent has not denied his signature on the
subject cheque. The first respondent has also not denied that
an amount of Rs.30,00,000/- was transferred from the account
of the complainant to the account of the first respondent with
ICICI Bank at Vasco. During the course of argument at Bar, in
reply to specific query, the learned Counsel for the first
respondent did not dispute the signature/execution of the Loan
Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18),
by the first respondent. The learned Magistrate in paragraph
18 of the judgment has held that the presumption under
Section 118(a) and Section 139 of the Act can be drawn in
favour of the complainant. The learned Magistrate has also
noticed the decision of the Hon'ble Supreme Court, in the case
of Rangappa (supra), holding that the presumption mandated
by Section 139 of the Act includes a presumption of the
existence of a legally enforceable debt or liability, The learned
Magistrate has also noticed that the first respondent has not
even suggested that the signature on the cheque was not his
or that it was not put by him. Thus, it can safely be said that
a presumption under Section 118(a) and Section 139 of the
Act arises in this case in favour of the complainant. It is true
that such a presumption is a rebuttable one. It is not
necessary for the first respondent/accused to lead any defence
evidence in order to rebut the presumption. The accused can
do so on the basis of the evidence led on behalf of the
complainant. In doing so, it has to be shown that the defence
raised by the first respondent/accused is probable. Before
adverting to the defence, it would be necessary to look into
the evidence of PW-3, Ms. Violet E Das and PW-4, Smt.
Saiprithi Shirodkar.
13. PW-3, Ms. Violet E Das is the Manager of Oriental
Bank of Commerce. She has stated that the letter (Exhibit-20)
was issued at the request of the said Credit Society. She has
stated that the RTGS entry was effected on instructions given
by authorised person.
PW-4, Smt. Saiprithi Shirodkar is the Branch
Manager of the ICICI Bank at Vasco. She has stated that the
first respondent is having an account with the said Bank. She
states that the amount of Rs.30,00,000/- was credited to the
said account on 28.04.2009 by RTGS from Oriental Bank of
Commerce from the account of the Credit Society. She has
produced the Statement of Account (Exhibit-68), which reflects
the deposit of Rs.30,00,000/- in the account of the first
respondent on 28.04.2009.
Thus, from the evidence of PW-3, Ms. Violet E Das,
and PW-4, Smt. Saiprithi Shirodkar and the Statement of
Accounts (Exhibits-20 and 68), it is clear that an amount of
Rs.30,00,000/- has been credited to the account of the first
respondent.
14. The perusal of the impugned judgment would show
that the learned Magistrate has considered the evidence of
PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri Madhukar
Khot, from paragraph 19 onwards. The learned Magistrate has
noticed certain discrepancies in their evidence inter se. It has
been found from the cross examination of PW-1, Smt.
Sulekhabai Chowghule that the first respondent had not
requested personally, for the loan. She admitted that she was
not present when the loan was given to the first respondent.
She has stated that Shri Madhukar Khot (PW-2) and one
Mohim, the son of her driver had requested to give the loan to
the first respondent. She also stated that she had given the
loan to Mohim. On the basis of this admission, the learned
Magistrate has found that the case of the complainant of
having given hand loan to the first respondent is falsified. The
learned Magistrate has then noticed, the evidence of PW-2,
Shri Madhukar Khot, in which the witness has stated that the
first respondent was introduced to him by one Mohim Khawja.
PW-2, Shri Madhukar Khot did not have any family or business
relations with the first respondent. He did not know why the
loan was given by the complainant. He did not request the
complainant to give the loan and the loan was not given on his
request. This part was found to be discrepant with the
evidence of PW-1, Smt. Sulekhabai Chowghule. The learned
Magistrate has then found that in such circumstances, Mohim
was “extremely material witness” and in the absence of his
examination, the role of Mohim in the entire transaction has
“remained unknown”.
It may be mentioned that although at one stage,
the complainant had stated that she had given a loan to
Mohim, in the further cross examination she has specifically
stated that the amount was given to the first respondent,
although, she admits that there was no commercial transaction
between the complainant and the first respondent. It is trite
that the evidence of any witness has to be read as a whole and
it is not possible to pick and choose certain part of evidence.
The learned Magistrate has then went upon
examining the evidence of PW-1, Smt. Sulekhabai Chowghule
and PW-2, Shri Madhukar Khot, in order to find that the case
of the complainant, is falsified. It has also been held that the
complainant is a housewife and as such, there was a doubt
whether the complainant had at all met the first respondent
and this according to the learned Magistrate “gives probability
to the stand taken by the accused in his reply”. The learned
Magistrate has noticed that the complainant had stated that
she inquired with the ICICI Bank if, the first respondent was
having any account with it, prior to giving loan to him. The
learned Magistrate has observed that it is unlikely as under the
Rules as to secrecy, the Bank would not divest any such
information of its constituents. It has been found that the
“safeguard allegedly taken by the complainant, prior to giving
the loan to the accused stands disproved”. It has also been
found that the complainant had admitted that the first
respondent is not having friendly relations or business
relations with her. Therefore, “a doubt arises that such a huge
sum would be advanced to an unknown person”. The learned
Magistrate has noticed some other aspect in the evidence,
about absence of any written instructions, to debit the amount,
which in the opinion of the Magistrate would have been a link
to connect the amount debited from the account of the
complainant and the amount credited in the account of the
first respondent by the Credit Society. The learned Magistrate
has then relied upon Section 2(8) of the Banker's Book
Evidence Act, to discard the Statement of Account (Exhibit-
68), for want of certificate as contemplated under the said Act.
The learned Magistrate has then found that PW-1, Smt.
Sulekhabai Chowghule has admitted that she was not present,
when the transaction was entered into and has therefore,
found that PW-2, Shri Madhukar Khot had exceeded his role as
a Manager in getting the documents executed. In the opinion
of the Magistrate, a question also arises “as to why the
complainant would have asked the Manager that the amount
advanced by her to the accused was not paid, if Shri Madhukar
Khot was only acting as a Manager to the Bank”. This
according to the learned Magistrate probalises the stand taken
by the first respondent that the cheque was issued, towards
security for a loan, which the first respondent had sought from
the Credit Society.
15. I have carefully gone through the reasoning
articulated by the learned Magistrate. It is true that there is
no clear evidence to show that the first respondent was so well
acquainted to the complainant, except the claim that he was
the friend of one Mohim, who is son of the driver of the
complainant. It can also be seen that there are certain
contradictions in the evidence of PW-1, Smt. Sulekhabai
Chowghule vis-a-vis the evidence of PW-2, Shri Madhukar
Khot. However, all these aspects would fall into insignificance
in the face of clear documentary evidence to show that the
amount of Rs.30,00,000/- was transferred from the account of
the complainant, to the account of the first respondent. In
addition to this, there are also documents in the nature of
Loan Security Bond (Exhibit-17) and a Promissory Note
(Exhibit-18), which are also not disputed by the first
respondent. The effect of all this evidence, coupled with the
absence of denial, would clearly fortify the statutory
presumption available to the complainant as the signature on
the cheque is not disputed.
16. The learned Counsel for the first respondent has
stated that the genesis of the entire transaction in this case is
shrouded in mystery. That coupled with the discrepancies in
the evidence of PW-1, Smt. Sulekhabai Chowghule and PW-2,
Shri Madhukar Khot, would probablise the defence set up by
the first respondent. I would tend to disagree. It is true that
evidence of PW-1, Smt. Sulekhabai Chowghule would show
that PW-2, Shri Madhukar Khot had taken active part in
transfer of the amount to the account of the first respondent,
as also execution of the documents namely, Loan Security
Bond (Exhibit-17) and a Promissory Note (Exhibit-18).
However, that by itself would be insufficient to say that the
defence is probablised. It may not be out of place to mention
that, the defence that, Shri Madhukar Khot had insisted for a
cheque, when the first respondent had approached the Credit
Society for loan, is not even put to PW-2, Shri Madhukar Khot.
That also does not find place in the statement of the first
respondent under Section 313 of Cr.P.C., The first respondent
only states that the case is filed at the instance of Shri
Madhukar Khot, the Branch Manager of the Credit Society.
Thus, in my considered view, the discrepancies found in the
evidence of PW-1, Smt. Sulekhabai Chowghule and PW-2, Shri
Madhukar Khot cannot over ride the evidence of PW-3, Ms.
Violet E Das, PW-4, Smt. Saiprithi Shirodkar. The Statement
of Account (Exhibit 68), which clearly show that the amount of
Rs.30,00,000/- was transferred to the account of the first
respondent. It is clearly established that the amount of
Rs.30,00,000/- was transferred to the account of the first
respondent, from the account of the complainant.
17. Reliance placed by the learned Magistrate on
Section 2(8) of the Bankers' Book Evidence Act is also
misplaced. The said Section defines certified copy, while
envisages a certificate in the prescribed format being
appended. Section 2A provides for conditions in the printout.
The learned Magistrate has found that in the absence of
the certificate, the Statement of Account (Exhibit-68) cannot
be relied upon. We have on record the Statement of Account
No. 211, of the complainant with the Credit Society (Exhibit-
16) and a Certificate dated 28.04.2009 (Exhibit-19), issued by
the Branch Manager of the Credit Society certifying that
Rs.30,00,000/- has been transferred in favour of the first
respondent, by debiting the amount to the Saving Bank
Account No. 211. In my considered view, this evidence cannot
be brushed aside merely, for the absence of the certificate as
contemplated in the Bankers' Book Evidence Act. (See AIR
1994 SC 1644, in the case of State Bank of India Vs.
Yumnam Gouramani Singh).
18. This takes me to the provisions of the Goa Money
Lenders Act, 2001. Section 2(k)(x) of the said Act of 2001
reads thus:
“2(k) - “loan” means an advance at interest,
whether of money or in kind, but does not
include —
(x) an advance of any sum exceeding rupees
three thousand made on the basis of a
Negotiable Instrument as defined in the
Negotiable Instruments Act, 1881 (Central
Act 26 of 1881), other than a promissory
note.” CRIA No. 24 OF 2013
22
19. Section 2(l)(a), which defines a “money lender”
reads thus:
“2(l) “money-lender” means,—
(i) an individual; or
(ii) an undivided Hindu Family; or
(iii) a company; or
(iv) an unincorporated body of
individuals, who or which—
(a) carries on business of money-lending in
the State; or does any activity of lending of
any finance.”
20. It cannot be disputed that the evidence of PW-2,
Shri Madhukar Khot, as also the Loan Security Bond (Exhibit-
17) and a Promissory Note (Exhibit-18), would show that the
amount was to carry interest at the rate of 18% per annum.
The question is whether such a transaction would come within
the mischief of Act of 2001. In other words, can it be said that
in the absence of a license, the transaction would cease to be
a legally enforceable debt or liability.
21. The question precisely turns upon the interpretation
of Section 2(l)(a) of the Act of 2001. The learned Magistrate
has relied upon the decision of this Court in the case of Kedar
Ramakant Kakodkar (supra), in order to hold that the words
in Section 2(l)(a) has widened the scope of activity of lending
of finance, so as to include within its sweep each and every
activity of such lending. Section 14 of the Act of 2001 lays
down that no decree shall be passed in any suit under the Act,
unless, the Court is satisfied that at the time, when the loan or
any part thereof, to which the suit relates was advanced, the
money lender held a valid license and if, the Court is satisfied
that the money lender did not hold a valid license, it shall
dismiss the suit. In the case of Kedar Ramakant Kakodkar
(supra), the order challenged was the one of rejection of plaint
under Order VII Rule 11 of the Code of Civil Procedure. The
suit was filed for recovery of the sum advanced to the
defendant under a loan agreement. The Civil Court in that
case had concluded that the averments in the plaint do not
bring out the fact that the plaintiff was a money lender, within
the meaning of Section 2(l) of the Money Lenders' Act. This
Court after examining the provisions of a cognate legislation,
namely, the Bombay Money Lenders' Act 1946 held thus in
paragraph 16:- CRIA No. 24 OF 2013
24
“16. Consequently, the plaint which refers
not to a single act of giving a loan, but
several such acts in absence of any specific
pleadings regarding the nature or object of
the business carried on by the plaintiff
purports to clothe the plaintiff with an
occupation or pursuit of lending finances, an
activity in which he purports to be active.”
It can thus be seen that in the case of Kedar
Ramakant Kakodkar (supra), the Court was concerned with
a matter, where there were multiple transactions.
22. In the case of M/s Armstrong Builders and
Developers (supra), this Court was considering an appeal
against acquittal, under Section 138 of the N.I. Act, as in the
present case. In that case also, there was a solitary
transaction. This Court specifically interpreted, the term
“activity”, as appearing in Section 2(l)(a) of the Act of 2001
and held thus in paragraph 8 of the judgment:
“8. The complainant was also cross
examined on the aspect of money lending.
In fact in the cross examination of the
complainant it was impliedly admitted that
the amount which was advanced to the
accused was not connected with the
business of the accused, the complainant's
business being that of a builder and
developer. The complainant had
categorically stated that he was not a money
lender nor did he have license to lend
money. Picking up the expression from para
3 of the complaint, that the complainant had
given a loan to the accused, learned Counsel
on behalf of the accused, submits that such
a loan was not recoverable in the light of the
provisions of the Goa Money Lenders Act,
2001. The learned Counsel on behalf of the
accused has particularly referred to the
expression activity in sub-clause (a) of
Clause (l) of Section 2 of the said Act and
has submitted that even a single loan would
come within the purview of the expression
"activity" appearing in the said sub-clause(a)
of Clause (l) of Section 2 of the Act. Apart
from the denial by the complainant that he
is the money lender, the accused produced
no evidence to bring on record to show that
the complainant was carrying on business of
money lending or any activity of lending of
any finance. The expression "activity" is not
defined under the said Act and the ordinary
dictionary meaning as per Black's Law
Dictionary activity is an occupation or
pursuit in which a person is active, and, as
per Oxford English Dictionary, it is the
condition in which things are happening or
being done. In other words, the very subject
of activity suggests continuity and therefore
a single act of giving a loan would not come
within the definition of sub clause(a) of
clause(l) of Section 2 of the said Act. In this
context, reference to the case of Rotakonda
Raghu Naidu Vs. Kolla S. Prasad (2004
(4) Crimes 295) could be made. The learned
Single Judge of the Andhra Pradesh High
Court referring to another decision of the
Division Bench of that Court observed that
"money lender" envisages only those
persons whose regular business is to
advance monies and not those who advance
monies casually. A solitary instance of giving
a loan does not make a person a money
lender. That being the position, the
provisions of the Goa Money Lenders Act,
2001 would be of no assistance to the case
of the accused.”
23. It can thus, be seen, that this Court after
consideration of the import of the expression “activity” has
held that a solitary instance of giving a loan does not make a
person “Money Lender”. It was held that provisions of the Goa
Money Lenders' Act of 2001 would be of no assistance to the
case of the accused. The facts in the present case are
similar/identical to the case of M/s Armstrong Builders and
Developers (supra). I am in respectful agreement that the
view expressed by a learned Single Judge of this Court in the
case of M/s Armstrong Builders and Developers (supra)
that a solitary instance of giving a loan would not make a
person a “Money Lender”. Thus, the provisions of Section 14
of the Act of 2001, cannot come to the aid of the first
respondent in this case. For these reasons, I hold that the
finding recorded by the learned Magistrate in this regard is
clearly not sustainable. The point is accordingly answered in
the affirmative.
24. Point No. (ii): The learned Magistrate has
considered the written advise/memo dated 31.10.2009
(Exhibit-12) and a letter dated 02.11.2009 of Bank of Baroda
(Exhibit-13). It has been found that the advise (Exhibit-12)
did not indicate as to which Bank had issued or who had
signed the same. It is found that PW-3, Ms. Violet E Das has
not identified the written advise (Exhibit-12) and she has not
deposed that the cheque was returned for insufficient funds.
The learned Magistrate has then referred to the evidence of
PW-5, Shri Anil Gaindhar, the Chief Manager of Bank of
Baroda, where the complainant is having an account. This
witness has stated on the basis of Statement of Account
(Exhibit-102), that the cheque was presented for payment on
31.10.2009 and was returned dishonoured for insufficient
funds on 02.11.2009 and this was so intimated to the
complainant on the same day. PW-5, Shri Anil Gaindhar has
stated that Exhibit-13, which is a letter from the Bank
intimating the complainant about dishonor of the cheque is
signed by Shri Kedar, the Chief Manager of the Bank. The
learned Magistrate has thereafter found that both the
Statements of Account (Exhibit-102) indicates that the cheque
bearing no. 510087 was returned dishonoured for insufficient
funds. However, it is held that the statement does not bear a
certificate as required under the Bankers' Book Evidence Act
and thus, cannot be read into evidence.
25. In my considered opinion, this is taking too
technical view of the matter. When the Chief Manager has
deposed that the cheque was dishonoured for insufficient funds
and it was so intimated to the complainant, it is difficult not to
believe the said witness for the reasons as stated by the
learned Magistrate. PW-4, Smt. Saiprithi Shirodkar has also
stated in categorical terms that the cheque was returned
dishonoured for insufficient funds. It is not possible to accept
that PW-4, Smt. Saiprithi Shirodkar and PW-5, Shri Anil
Gaindhar would fabricate a false Statement of Account, only to
help the complainant. Thus, it has to be held that the cheque
was dishonoured on account of insufficient funds. The point is
accordingly answered in the affirmative.
26. Point No. (iii): The scope and ambit of an appeal
against acquittal is no longer res intriga. It is not well settled
that although, in an appeal against acquittal, the Appellate
Court cannot justifiably substitute its view, in the place by the
one taken by the lower Court, when two views are equally
possible. However, this would apply only where two views are
equally and reasonably possible, on the basis of the evidence
led. If, the view recorded by the learned Magistrate is found to
be perverse or in the nature of impossible view, the Appellate
Court would not only be justified, but duty bound to step in.
As noticed earlier, the finding recorded by the learned CRIA No. 24 OF 2013
30
Magistrate in holding that the subject cheque was not issued
towards discharge of a legally enforceable debt or liability is
clearly against the weight of the evidence in the form of
transfer of an amount of Rs.30,00,000/-. The reliance placed
on the provision of Section 2(8) of the Bankers' Book Evidence
Act and on the provisions of the Act of 2001, is also misplaced.
Thus, I find that the impugned judgment needs interference.
The point is accordingly answered in the affirmative.
27. I have heard, the first respondent and Shri De Sa,
the learned Counsel appearing for the first respondent, as also
Shri Usgaonkar, the learned Senior Counsel for the appellant
on the point of sentence.
28. It is submitted by Shri De Sa, the learned Counsel
for the first respondent that the first respondent is the sole
earning member in the family and therefore, leniency may be
shown while awarding the sentence. It is submitted that some
time may be granted to surrender.
29. Having regard to the above circumstances, and
having heard the learned Counsel for the parties, the following
order is passed:
(i) The appeal accordingly succeeds and is
allowed. The impugned judgment of
acquittal is hereby set aside. The first
respondent is hereby convicted for the
offence punishable under Section 138 of
the Negotiable Instruments Act.
(ii) The first respondent is sentenced to
suffer simple imprisonment for a period of
three months and to pay compensation of
Rs.30,00,000/- and in default to suffer
further simple imprisonment, for a period
of three months.
(iii) The first respondent is granted one
week's time to surrender before the
learned Magistrate. In the event of failure,
the learned Magistrate shall take steps for
getting the first respondent apprehended,
for serving the sentence.
(iv) The appeal is disposed of, in the
aforesaid terms.
C. V. BHADANG,J.
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