The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct. He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao Kumbhar to file a complaint on
behalf of the complainant bank.
applicant appears to be proper. The Magistrate's reasoning that
the resolution had not been proved because the same had been
passed in the absence of the said Hindurao Kumbhar, and that, he
had no personal knowledge about the said resolution is not sound.
The Magistrate's view that some of the persons who passed the
resolution ought to have been examined, is not correct.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.920 OF 2013
WITH
CRIMINAL APPLICATION NO.472 OF 2013
IN
CRIMINAL APPEAL NO.920 OF 2013
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.920 OF 2013
WITH
CRIMINAL APPLICATION NO.472 OF 2013
IN
CRIMINAL APPEAL NO.920 OF 2013
THE KARAD URBAN COOPERATIVE BANK LIMITED V/s.
SUNIL LAXMAN DALVI AND ANR. )...RESPONDENTS
CORAM : ABHAY M. THIPSAY, J.
DATE : 15th DECEMBER 2015.
Citation:2016(4) MHLJ 577
1 The appellant is a cooperative bank. It had filed a
complaint against respondent no.1 herein alleging commission of
an offence punishable under Section 138 of the Negotiable
Instruments Act (N.I.Act). The Judicial Magistrate First Class,
complaint against respondent no.1 herein alleging commission of
an offence punishable under Section 138 of the Negotiable
Instruments Act (N.I.Act). The Judicial Magistrate First Class,
Karad, after holding a trial, held respondent no.1 not guilty and
passed an order of acquittal. Being aggrieved by the said order of
acquittal, the appellant has, after obtaining special leave of this
court, filed the present appeal.
2 During the pendency of the appeal, the appellant has
also filed an application praying that additional evidence, as
contemplated under Section 391 of the Code of Criminal
Procedure (Code), be directed to be taken. It was decided that
this application for a direction to take additional evidence, be also
considered along with the appeal.
3 Respondent No.1 did not remain present at the time of
final hearing of the appeal, inspite of notice, and inspite of
granting him repeated opportunities to be present. The appeal, as
well as the application for further evidence to be taken is,
therefore, being decided, after hearing the learned counsel for the
appellant and the learned APP; and after going through the
relevant record and proceedings.
passed an order of acquittal. Being aggrieved by the said order of
acquittal, the appellant has, after obtaining special leave of this
court, filed the present appeal.
2 During the pendency of the appeal, the appellant has
also filed an application praying that additional evidence, as
contemplated under Section 391 of the Code of Criminal
Procedure (Code), be directed to be taken. It was decided that
this application for a direction to take additional evidence, be also
considered along with the appeal.
3 Respondent No.1 did not remain present at the time of
final hearing of the appeal, inspite of notice, and inspite of
granting him repeated opportunities to be present. The appeal, as
well as the application for further evidence to be taken is,
therefore, being decided, after hearing the learned counsel for the
appellant and the learned APP; and after going through the
relevant record and proceedings.
4 I have heard Mr.Shekhar Jagtap, the learned counsel for
the appellant. With his assistance, I have gone through the
impugned judgment, the complaint, and the notes of evidence
adduced during the trial, which are annexed to the appeal memo.
5 For the sake of convenience and clarity, the appellant
shall hereinafter be referred to as “the complainant” and respondent
no.1 as “the accused.”
6 The case of the complainant was that, in repayment of
the loan taken by the accused from the complainant bank, the
accused had issued a cheque in the sum of Rs.5 Lac, which was
dishonoured, and that, inspite of making a demand for the amount
of the said cheque, the same was not paid.
7 One Hindurao Kumbhar, authorized Officer of the
complainant bank, was examined as a witness during the trial. No
other witness was examined by or on behalf of the complainant. The
accused also did not examine himself on oath or lead any evidence
in defence.
the appellant. With his assistance, I have gone through the
impugned judgment, the complaint, and the notes of evidence
adduced during the trial, which are annexed to the appeal memo.
5 For the sake of convenience and clarity, the appellant
shall hereinafter be referred to as “the complainant” and respondent
no.1 as “the accused.”
6 The case of the complainant was that, in repayment of
the loan taken by the accused from the complainant bank, the
accused had issued a cheque in the sum of Rs.5 Lac, which was
dishonoured, and that, inspite of making a demand for the amount
of the said cheque, the same was not paid.
7 One Hindurao Kumbhar, authorized Officer of the
complainant bank, was examined as a witness during the trial. No
other witness was examined by or on behalf of the complainant. The
accused also did not examine himself on oath or lead any evidence
in defence.
8 The order of acquittal was passed by the learned
Magistrate mainly on two grounds. The Magistrate was of the
view, firstly, that the authority of the said Hindurao Kumbhar to
file a complaint on behalf of the complainant bank, was not
satisfactorily proved. He was of the view that since the complaint
had not been filed by a person duly authorized by the payee i.e.
the complainant bank, the complaint was not maintainable.
Secondly, the Magistrate held that, that the cheque had been
issued in discharge of a legally enforceable debt or other liability,
had also not been proved.
9 The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct. He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao Kumbhar to file a complaint on
behalf of the complainant bank.
10 This submission of the learned counsel for theMagistrate mainly on two grounds. The Magistrate was of the
view, firstly, that the authority of the said Hindurao Kumbhar to
file a complaint on behalf of the complainant bank, was not
satisfactorily proved. He was of the view that since the complaint
had not been filed by a person duly authorized by the payee i.e.
the complainant bank, the complaint was not maintainable.
Secondly, the Magistrate held that, that the cheque had been
issued in discharge of a legally enforceable debt or other liability,
had also not been proved.
9 The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct. He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao Kumbhar to file a complaint on
behalf of the complainant bank.
applicant appears to be proper. The Magistrate's reasoning that
the resolution had not been proved because the same had been
passed in the absence of the said Hindurao Kumbhar, and that, he
had no personal knowledge about the said resolution is not sound.
The Magistrate's view that some of the persons who passed theresolution ought to have been examined, is not correct.
11 However, the other finding recorded by the Magistrate
– i.e., that 'the complainant had failed to prove that the cheque in
question was issued in discharge of a legally enforceable debt or
other liability' appears to be correct.
12 Interestingly, the complaint merely states that the
accused had issued the cheque in repayment of the loan without
giving any particulars of the loan. The complaint does not give any
details as to when the amount of loan was disbursed. It does not
even give the amount of loan that was given to the accused. In the
affidavit of his evidence in lieu of examinationinchief also, the
witness for the complainant, did not give these details. On the
contrary, he admitted that he did not know about these details.
13 In the crossexamination of the complainant's witness,
he admitted that, usually, when a cheque is given for repayment of
a loan, the (loan) account number of the debtor is written on the
reverse of the cheque. He admitted that, in the instant case, such
account number was not written. Inspite of repeatedly being
questioned in the crossexamination, he could not give the loan
account number of the accused, while admitting that such loan
account number ought to be there, if the accused had been given a
loan.
14 In the crossexamination of the complainant's witness,
he admitted that proceedings had been filed against the accused
in the Cooperative court and some award had been obtained from
the Cooperative court. He also admitted that the accused had
deposited some amount in the loan account. He, however, was
unable to state how much amount had been deposited by the
contrary, he admitted that he did not know about these details.
13 In the crossexamination of the complainant's witness,
he admitted that, usually, when a cheque is given for repayment of
a loan, the (loan) account number of the debtor is written on the
reverse of the cheque. He admitted that, in the instant case, such
account number was not written. Inspite of repeatedly being
questioned in the crossexamination, he could not give the loan
account number of the accused, while admitting that such loan
account number ought to be there, if the accused had been given a
loan.
14 In the crossexamination of the complainant's witness,
he admitted that proceedings had been filed against the accused
in the Cooperative court and some award had been obtained from
the Cooperative court. He also admitted that the accused had
deposited some amount in the loan account. He, however, was
unable to state how much amount had been deposited by the
accused in the loan account and / or how much loan amount had
already been satisfied on 25th February 2005, i.e., the date on
which the cheque was supposedly issued. The witness also stated
that he did not have any record or account to show how much
amount was due and payable by the accused to the complainant on
25th February 2005.
15 The accused had taken a defence that he had
previously obtained loan from the complainant bank which had
been repaid. These facts were admitted by the complainant's
witness in his crossexamination. The case of the accused was
that, a cheque given by him to the complainant at that time, as
and by way of security, had been misused, and the accused was
wrongly being prosecuted with respect to an offence punishable
under Section 138 of the N.I.Act.
16 In light of the fact that the complainant had
scrupulously avoided giving any details, whatsoever, of the loan
allegedly obtained by the accused, and the admission of the
already been satisfied on 25th February 2005, i.e., the date on
which the cheque was supposedly issued. The witness also stated
that he did not have any record or account to show how much
amount was due and payable by the accused to the complainant on
25th February 2005.
15 The accused had taken a defence that he had
previously obtained loan from the complainant bank which had
been repaid. These facts were admitted by the complainant's
witness in his crossexamination. The case of the accused was
that, a cheque given by him to the complainant at that time, as
and by way of security, had been misused, and the accused was
wrongly being prosecuted with respect to an offence punishable
under Section 138 of the N.I.Act.
16 In light of the fact that the complainant had
scrupulously avoided giving any details, whatsoever, of the loan
allegedly obtained by the accused, and the admission of the
complainant's witness that he did not have such details, the
defence of the accused was certainly plausible. The Magistrate's
conclusion, that the accused had successfully rebutted the
presumption created by Section 139 of the N.I.Act, was proper
and legal.
17 The question that now remains is, whether the
appellant should now be permitted to adduce further evidence as
contemplated under Section 391 of the Code. I have specifically
heard the learned counsel for the appellant on this aspect.
Interestingly, the new evidence that is sought to be adduced is the
award passed by the Cooperative court. Inspite of specifically
questioning, the learned counsel for the appellant did not say that he
wanted to produce the statement of the loan account of the accused
by way of additional evidence.
18 The award would show the opinion of the Cooperative
court. The decision rendered by the Cooperative court
would not be admissible or even relevant in the proceedings that
defence of the accused was certainly plausible. The Magistrate's
conclusion, that the accused had successfully rebutted the
presumption created by Section 139 of the N.I.Act, was proper
and legal.
17 The question that now remains is, whether the
appellant should now be permitted to adduce further evidence as
contemplated under Section 391 of the Code. I have specifically
heard the learned counsel for the appellant on this aspect.
Interestingly, the new evidence that is sought to be adduced is the
award passed by the Cooperative court. Inspite of specifically
questioning, the learned counsel for the appellant did not say that he
wanted to produce the statement of the loan account of the accused
by way of additional evidence.
18 The award would show the opinion of the Cooperative
court. The decision rendered by the Cooperative court
would not be admissible or even relevant in the proceedings that
were before the Magistrate. The law regarding the relevancy of
judgments delivered by the courts is found in Sections 40 to 44 of
the Evidence Act. The judgment delivered by the Cooperative
court or the award passed by it is not even relevant in the context
of the proceedings that were before the Magistrate.
19 As such, I do not find any merit in the application for
permitting the appellant to adduce further evidence in the matter.
20 The judgment and order of acquittal, as passed by the
Magistrate, is proper and legal. There is no merit in the appeal.
21 The appeal, as well as Criminal Application No.472 of
2013, are both dismissed.
(ABHAY M. THIPSAY, J.)
judgments delivered by the courts is found in Sections 40 to 44 of
the Evidence Act. The judgment delivered by the Cooperative
court or the award passed by it is not even relevant in the context
of the proceedings that were before the Magistrate.
19 As such, I do not find any merit in the application for
permitting the appellant to adduce further evidence in the matter.
20 The judgment and order of acquittal, as passed by the
Magistrate, is proper and legal. There is no merit in the appeal.
21 The appeal, as well as Criminal Application No.472 of
2013, are both dismissed.
(ABHAY M. THIPSAY, J.)
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