Kamlakar Anant Samant v. Gulab Mohan Patil

-1- ALP-50-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO. 50 OF 2022Kamlakar Anant Samant, Age : 61 years, Occu. : Business,R/o. Anantashram, Hirapur Road, Chalisgaon, Dist. Jalgaon. … Applicant (Orig. Complainant)VersusGulab Mohan Patil, Age : 55 years, Occu. : Business,R/o. At Post Wakadi, Tq. Nandgaon, Dist. Nashik… Respondent (Orig. Accused)…Mr. Siddhartha B. Yawalkar, Advocate for Applicant.Mr. Rahul B. Temak, Advocate for Respondent.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 19th APRIL, 2024PRONOUNCED ON : 10th MAY, 2024ORDER : 1.Original complainant, who instituted proceedingsunder section 138 of Negotiable Instruments Act, is intending tochallenge the judgment and order of acquittal passed by learnedJudicial Magistrate First Class, (Court No.3), Chalisgaon, DistrictJalgaon, dated 12.01.2022 passed in S.C.C. No.711 of 2010.2.Learned counsel for applicant submitted that, therewas hand loan transaction. Out of cordial relations and longacquaintance, loan to the tune of Rs.15,00,000/- was extended to -2- ALP-50-2022the accused, who assured to repay it in a month. Accused issuedpromissory note (Usanwar Pawati) and the same was placed onrecord. According to learned counsel, issuance of cheque, signatureover it and acknowledging promissory note were not disputed inthe trial court. Therefore, complainant’s case was virtually proved. According to him, learned trial court still acquitted the accused, holding that, complainant is not holder of instrument in duecourse. According to him, learned trial court has also questionedthe legally enforceable debt. It is pointed out that, in fact, complainant is a partner of a firm. Merely not filing complaint inthe name of firm, would not be itself a good ground to question thetransaction. It is pointed out that bank official has also beenexamined. In support of transaction carried out in the name offirm, learned counsel pointed out that, all such crucial aspects arenot appreciated by learned trial Judge. Therefore, there is a goodcase on merits in appeal and hence he seeks leave. 3.In support of his submissions, learned counsel forapplicant places reliance on following decisions :- i]Principal Commissioner v. Cadila Healthcare Limited, AIROnline 2022 GUJ 1416;ii]Regional Director, Employees’ State Insurance Corporation, Trichur v. Ramanuja Match Industries AIR 1985 SC 278; -3- ALP-50-2022iii]Sanjay Sreesha v. Serious Fraud Investigation Office Ministry of Corporate Affairs, New Delhi, AIROnline 2022 Kar 3001.4.In answer to above, learned counsel for respondentaccused pointed out that, very transaction alleged by complainanthas come under shadow of doubt. It is pointed out that, thoughthere was cheque, it was towards distinct transaction of supply oflabour. That, there was no hand loan as alleged. Moreover, it ispointed out that, there is a legal issue. He specifically pointed outthat, though, cheque is issued in the name of firm, complaint isapparently filed in individual capacity. For all above reasons, it issubmitted that, complaint failed to attract the provisions of 138 ofN.I. Act and so learned trial court committed no error in acquittingthe accused. Hence, he prays to refuse leave.5.After considering the submissions of both sides and ongoing through papers, it seems that, S.C.C. No. 711 of 2010 wasfiled in the name of Kamlakar Anand Samant i.e. complainant. Thesum and substance of his complaint is that, he is a partner of a firmnamely, ‘Shwet Sarita Farm Product’. Because of friendly relationswith accused, on demand, complainant handed over Rs.15,00,000/-as a hand loan. Towards repayment of the said loan, complainantput up a case that, accused issued two cheques amount of -4- ALP-50-2022Rs.10,00,000/- and Rs.5,00,000/- respectively, but the same weredishonoured. In spite of legal notice, accused failed to give thecheque amount and hence the proceedings. 6.Defence of accused is that, there was no borrowing ofloan as alleged at all. It is his case that blank cheques were issuedto Sangli Sugar Factory, which is owned by complainant in adistinct transaction and that too as a security, but same beingmisused. It is also his defence that, there is no legally enforceabledebt at his end. He also denied receipt of legal notice.7.In cases of such nature, at the outset, it is incumbentupon complainant to establish very legally enforceable debt orliability. Exact transaction has to be demonstrated and establishedby adducing legally acceptable evidence. Here, precise case ofcomplainant is that, on demand, out of friendly relations, he gaveRs.15,00,000/- on 28.09.2009. Accused issued “Usanwar Pawati”.Accused issued cheque (Exh.40) and the same was dishonoured.8.As pointed out that, it is emerging that, in complaint itis averred that, on 28.09.2009 in the office of Notary, he gave loanto the tune of Rs.15,00,000/- and accused issued promissory note(Exh.44). But, at the same time, complainant seems to have also -5- ALP-50-2022came with a case that he gave a loan to accused by issuing twocheques i.e. of Rs.10,00,000/- bearing No.524972 dated26.09.2009 and another cheque of Rs.5,00,000/- bearing no.524974 dated 29.09.2009. Such split up is not stated in thesubstantive evidence. The dates of handing over of loan and themode of extending loan are found to be inconsistent.9.As pointed out and it is also emerging from complaintthat, proceedings are instituted in the individual capacity. Passingreference is made about he too be a partner of firm by name “ShwetSarita Farm Product”. Cheque in question is also issued in thename of said firm. Complaint is obscure as to whether so called loanwas extended from firm’s account or from individual account. Specific case is that, there is extension of friendly loan, but chequeare in firm’s name. Such things do not go in hand in hand. Suchaspect also creates doubt about the very aspect of extension offriendly loan and further existence of legally enforceable debt.10.Resultantly, in the light of above discussion, apparently very transaction of extension of loan is not cogentlyproved. No legally enforceable debt is shown to be existing at thetime of handing over cheque to attract the rigors of section 138 ofN.I. Act -6- ALP-50-2022 Learned counsel for applicant relied on above rulings, however, with due respect, facts in those cases cannot be equatedhere being distinct. No good ground being made out to grant leave to fileappeal nor any illegality or perversity is brought to the notice inthe appreciation at the hands of learned trial court, relief as prayedcannot be granted. Hence, the following order :- ORDERLeave refused. Application is rejected. (ABHAY S. WAGHWASE, J.) Tandale