adduced, I find that the view taken by the Magistrate was a
reasonable one and based on the evidence adduced before him.
There were a number of suspicious features about the case of the
complainant which have been reflected in the judgments delivered
by the learned Magistrate. On considering the facts of the case,
even this Court feels that the possibility of the complainant having
taken blank signed cheques from the accused, is apparent, and in
any case, cannot be ruled out. Moreover, since the complainant
has advanced a similar loan to a number of persons, the
transactions in the present two cases are quite likely to be of the
type which the provisions of the Bombay Money Lenders Act
prohibit. The conclusion arrived at by the learned Magistrate that
the cheques in question could not be said to have been issued for
the discharge of a legally enforceable debt or other liability, does
not appear to be suffering from any infirmity or illegality.
16 The complainant vehemently contended that the loan
was advanced on the basis of a bill of exchange, and that
therefore, in view of clause (f) of subsection (9) of section 2 of
the Bombay Money Lenders Act 1946, it could not be termed as a
loan to which the provisions of the Bombay Money Lenders, 1946
would apply. However, on a careful consideration on the facts of
the case, it appears that in reality, there was no genuine
transaction on the basis of any bill of exchange. The complainant
simply had advanced some amounts to the accused no.1 on
interest, and had in all probability, taken the blank hundies and
blank signed cheques at that time itself. There is a reason to
believe that the complainant was advancing money as and by way
of a business of money lending without having a valid licence.
This conclusion that was arrived at by the learned Magistrate
cannot be said to be suffering from any infirmity or illegality.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.19 OF 2005
WITH
CRIMINAL APPEAL NO.21 OF 2005
Girdhari Parmanand Motiani .. Appellant
Versus
Vinayak Bhagwan Khavnekar
CORAM : ABHAY M. THIPSAY, J.
DATED : 14th AUGUST, 2015
Citation: 2016 ALLMR(CRI)1909
1 These two Appeals can be conveniently disposed of by
this common order as the parties are same, and the points needing
determination are also the same.
2 The appellant is the original complainant. He had
filed two complaints against the respondent nos.1 and 2 herein,
alleging commission of an offence punishable under section 138 of
the Negotiable Instruments Act by them. One of the complaints
was numbered as C.C.No.2/S/2003 and the other as
C.C.No.4/S/2003. The C.C.No.2/S/2003 related to a cheque in
the sum of Rs.3,00,000/ while the other related to a cheque of
Rs.96,000/. According to the appellant, cheques in both these
cases had been given to him by the respondent no.1 herein
towards the repayment of friendly loan advanced by the
complainant to him. That, since both the cheques were
dishonored, and that inspite of the notice of demand with respect
to the dishonor of each cheque, the payments were not made, the
aforesaid two separate complaints were filed by the appellant.
3 The learned Magistrate tried both the cases, and in
both the cases passed an order of acquittal. The appellant is
aggrieved by the said orders of acquittal, and has therefore, after
obtaining special leave of this Court, filed the present two Appeals.
According to the appellant, the orders of acquittal, as passed by
the learned Metropolitan Magistrate, being not in accordance with
law, are liable to be set aside, and the respondent nos.1 and 2 are
liable to be convicted.
4 For the sake of convenience and clarity, the appellant
shall be referred to as 'the complainant', and the respondent nos.1
and 2 as 'the accused nos.1 and 2' respectively.
5 Before proceeding further, it must observed that in
both the cases, the cheques had been signed by the accused no.1 –
Vinayak Khavnekar. The accused no.2 – Vinayak Kheur had not
signed the cheque, nor were the cheques drawn on an account
maintained by him. He could not be called as the drawer of the
cheques in question. As such, there was nothing even for
proceeding against the said Accused no.2 Vinayak Kheur. His
acquittal, therefore, is proper, and does not call for any
examination or discussion.
6 The complainant who is a Senior citizen appeared
before the Court in person. He had earlier engaged an Advocate,
but as that Advocate did not remain present before the Court, the
complainant had requested the Court to appoint an Advocate
under the Free Legal Aid Scheme to prosecute these Appeals. On
two occasions, therefore, Advocates were appointed to prosecute
the Appeals filed by him, but the complainant was not happy with
them, and the Advocates so appointed sought a discharge, which
was given. Ms.Anamika Malhotra, the learned Additional Public
Prosecutor, who was at the material time, attached to this Court,
was appointed as amicus curiae to assist the Court as the
complainant pleaded that due to old age, he had difficulty in
hearing. Nevertheless, later the complainant stated that he would
argue the Appeals in person and that he was ready to go on with
the matter. Since the complainant was raising a grievance about
delay in disposal of the Appeal, the same were taken up for final
hearing, and since today the complainant expressed his readiness
to go ahead with the final hearing of the Appeals without the
assistance of any Advocate, the same were finally heard today.
7 I have heard the complainant. I have carefully gone
through the complaint in both the cases. I have also carefully
gone through the impugned judgments. The learned APP was
asked to provide assistance to the complainant in arguing the
Appeal which has been done by the learned APP.
8 The cheque which is the subject matter of Criminal
Appeal No.19 of 2005 which arises out of C.C.No.2/SS/2003 is in
the sum of Rs.3,00,000/. The cheque in the other Appeal i.e.
Appeal No.21 of 2005 which arises out of C.C.No.4/SS/2003 is in
the sum of Rs.96,000/. According to the complainant, the cheque
in the sum of Rs.3,00,000/ had been given by the accused no.1
towards the repayment of a temporary loan of equal amount given
to him by the complainant. The other cheque which is in the sum
of Rs.96,000/ was given to the complainant by the accused no.1
towards the repayment of a loan of Rs.80,000/ together with
interest.
9 The record shows that according to the complainant,
the loan of Rs.80,000/ was given to the accused no.1 on 4th June
1994. The loan of Rs.3,00,000/ was given on 11th August 1994.
The cheque in the sum of Rs.96,000/ is bearing No.354161 and is
dated 31/3/1995. The cheque in the sum of Rs.3,00,000/ is
bearing 354162 and is dated 24/5/1996. The cheque in the sum
of Rs.96,000/ was dishonored on 9/4/1995, whereas the cheque
in the sum of Rs.3,00,000/ was dishonored on 25/5/1996. The
complaint in respect of the cheque of Rs.96,000/ was filed on 9th
August 1995 and the complaint in respect of the cheque in the
sum of Rs.3,00,000/ was filed on 5th July 1996.
10 The defence of the accused no.1 was that the
complainant was illegally doing the business of money lending. It
was submitted that the complainant had advanced loan with
exorbitant rate of interest to some other persons who were also,
like the accused no.1, working in Reserve Bank of India. It was
submitted that at the time of advancing the loans, the complainant
used to obtain the signatures on blank bills of exchange, and also
used to take blank signed cheques from the person to whom he
would advance the loan. It is submitted that in this case, some
loan transaction had indeed taken place between the complainant
and the accused no.1, but the amount borrowed was only
Rs.30,000/ which had been paid along with the interest. The
defence was that the blank cheques and the blank bills of
exchange taken by the complainant at the time of advancing the
loan have been misused by him by filling the particulars, later. It
is submitted that no amount as mentioned in the cheques was
actually due and payable by the accused no.1 to the complainant.
It was also submitted that the transaction essentially being of
money lending, the amount advanced by the complainant was not
legally recoverable by virtue of the provisions of Bombay Money
Lenders Act, 1946.
11 A perusal of the impugned orders in both the cases
indicates that the Magistrate doubted the truth of the
complainant's version. The Magistrate considered the evidence
adduced by the complainant by examining himself and an Officer
from the Abhyudaya Cooperative Bank on which the cheques
were drawn. The Magistrate also considered documentary
evidence that was tendered by the complainant during the trial.
The Magistrate observed that it was revealed in the crossexamination
of the complainant that he had filed cases in respect
of offences punishable under section 138 of the Negotiable
Instruments Act not only against the accused in the present case,
but also against some other persons with whom he claimed he had
entered into transactions of similar nature.
12 During the trial, since the accused persons disputed
and challenged the writings on the bills of exchange and the
cheques, the documents in question were forwarded to an expert
for examination of the writings and his opinion thereof. However,
the expert could not give definite opinion on the identity of the
handwriting on the said documents. The learned Magistrate felt
suspicious about the truth of the version of the complainant
because of a number of factors, including the fact that the cheques
in these two cases were of consecutive serial numbers, but one had
been issued on 31st March 1995 and the other had been issued on
24th May 1996 i.e. after a period of more than one year.
13 When the cheque of Rs.96,000/ was dishonored on
5
th April 1995, the complainant had given a notice demanding the
payment thereof on 21st April 1995 in which he had not mentioned
anything about the subsequent loan given by him to the accused in
the sum of Rs.3,00,000/. It is difficult to believe that the accused
who had been in difficulties due to the dishonor of the earlier
cheque, would create further difficulties for himself by giving one
more cheque which was going to be dishonored. The case of the
accused no.1, as aforesaid, was that blank cheques had been given
to the complainant which was felt quite probable because of this
aspect of the matter and because the cheques were having
consecutive serial numbers, but still the difference in the date on
which they were drawn was of more than one year.
14 The Magistrate came to the conclusion that the
version of the complainant could not relied upon, and that, the
complainant had advanced a loan in contravention of the
provisions of Bombay Money Lenders Act. According to the
Magistrate, therefore, the amount advanced by the complainant to
the accused no.1 was not legally recoverable and as such, the
accused no.1 could not be held guilty of an offence punishable
under section 138 of the Negotiable Instruments Act.
15 On going through the complaints, the evidence
adduced, I do not find that the view taken by the Magistrate was a
reasonable one and based on the evidence adduced before him.
There were a number of suspicious features about the case of the
complainant which have been reflected in the judgments delivered
by the learned Magistrate. On considering the facts of the case,
even this Court feels that the possibility of the complainant having
taken blank signed cheques from the accused, is apparent, and in
any case, cannot be ruled out. Moreover, since the complainant
has advanced a similar loan to a number of persons, the
transactions in the present two cases are quite likely to be of the
type which the provisions of the Bombay Money Lenders Act
prohibit. The conclusion arrived at by the learned Magistrate that
the cheques in question could not be said to have been issued for
the discharge of a legally enforceable debt or other liability, does
not appear to be suffering from any infirmity or illegality.
16 The complainant vehemently contended that the loan
was advanced on the basis of a bill of exchange, and that
therefore, in view of clause (f) of subsection (9) of section 2 of
the Bombay Money Lenders Act 1946, it could not be termed as a
loan to which the provisions of the Bombay Money Lenders, 1946
would apply. However, on a careful consideration on the facts of
the case, it appears that in reality, there was no genuine
transaction on the basis of any bill of exchange. The complainant
simply had advanced some amounts to the accused no.1 on
interest, and had in all probability, taken the blank hundies and
blank signed cheques at that time itself. There is a reason to
believe that the complainant was advancing money as and by way
of a business of money lending without having a valid licence.
This conclusion that was arrived at by the learned Magistrate
cannot be said to be suffering from any infirmity or illegality.
17 Moreover, it ought to be kept in mind that these are
Appeals against Acquittals. It is well settled that while dealing
with Appeal from the order of acquittal, this Court would not
interfere with the view taken by the trial Court, if the same would
be a possible view. It is well settled that when two views of the
matter are possible on the basis of the evidence adduced before
the trial court, and the trial court has taken one of them leading to
acquittal, then the appellate Court would not interfere with the
order of acquittal.
17 The view of the matter as taken by the learned
Magistrate in both the cases is certainly a possible view,
warranting no interference.
18 The Appeals are dismissed.
(ABHAY M.THIPSAY, J)
No comments:
Post a Comment