Matadin Khairatimal Joshi v. Premchand Prathaviraj Kotecha

Judgment

1. This appeal is directed by the appellant/original complainant against the judgement and order of acquittal recorded by learned Joint

Judicial Magistrate (First Class), Bhusawal, dated 29th October, 2001, acquitting the respondent/ original accused in Regular Criminal Case No. 77/1992, of the offence punishable under section 138 (2) criapl70-2002 of the Negotiable Instruments Act read with section 420 of the I.P. Code.

2. I have heard learned counsel Mr. S.P. Brahme for the appellant, followed by the submissions of learned counsel Mr. S.S. Choudhari for the respondent.

3. During the course of submissions across the bar, learned counsel appearing for the appellant would urge that an error has been committed by the learned trial court in drawing the conclusion that the cheque issued by the respondent in favour of the appellant was not for discharge of legally enforceable debt and on that account alone, the learned trial court has dismissed the complaint. He would further urge that the learned trial court has committed an error by holding that at the time of issuance of the cheque by the respondent, there was no intention to cheat the appellant by the respondent and hence, the learned trial court has committed an error in acquitting the respondent/accused of the abovesaid offences. Learned counsel would further urge by drawing my attention to the judgement (3) criapl70-2002 rendered by the learned trial court that the learned trial court has observed in paragraph No. 6 of its judgement that the respondent has not denied his acquintance with the appellant, the respondent has also not disuted the fact that the cheque of Rs. 22,000/- drawn on J.D.C.C. Bank, Bhusawal, dated 1-2-1992 was given by the respondent to the appellant. It is also not disputed that when the said cheque was deposited by the appellant with his bankers, it was dishonoured due to insufficiency of funds. It is also not disputed that before the complaint was filed, legal notice was given by the appellant to the respondent and the respondent has not made any arrangement to make the payment of the amount under the said dishonoured cheque, which was issued by the respondent in favour of the appellant. Learned counsel would urge that considering these undisputed facts between the parties, the entire burden lies on the respondent to prove that the cheque issued by him in favour of the appellant, which was dishonoured, was not issued to discharge the legally enforceable debt, which liability, according to him, was not discharged by the (4) criapl70-2002 respondent as is held by the court below and thus, the learned court below has come to a wrong conclusion.

4. As against this, learned counsel Mr. S.S. Choudhari, appearing for the respondent, supports the judgement of acquittal rendered by the court below. He would urge that the finding recorded by the court below while acquitting the respondent of the alleged offences is not based on surmises and assumptions but is based on the admissions given by the appellant in his cross-examination after the charge was framed and if the finding is based on the admissions given by the appellant in his cross-examination, now the appellant cannot take stand that the conclusion drawn by the court below is based on surmises and assumptions and far away from the facts. On the contrary, learned counsel for the Appellant has not pointed out any perversity particularly the observations of the trial court in para No. 15 and para No. 16 of the judgement impugned.

5. In the light of these submissions, I perused the complaint filed before the court below by the (5) criapl70-2002 appellant on 20th May, 1992, which was numbered as Regular Criminal Case No. 77/1992 wherein it is alleged by the appellant/complainant that the respondent was contractor by profession and having expertise in the engineering field. The respondent was doing a business in partnership of a partnership firm since last twenty years and hence, he was acquainted with the appellant/complainant. It is further alleged that the respondent was in extreme need of money required for his business of partnership firm and hence, he (respondent) took hand-loan of Rs. 22,000/- from the appellant/ complainant on 12th January, 1992. The respondent assured to repay the said amount taken by way of hand-loan. Thereafter, the respondent issued a post- dated cheque drawn on Jalgaon District Central Cooperative Bank, at Bhusawal bearing No. I-0742834 on 1st February, 1992. It is further alleged that the said cheque was deposited by the appellant with his bankers on 29th April, 1992 and it was dishonoured and the appellant did not receive the amount under that cheque. Hence legal notice dated 29th April, 1992 was served on the respondent (6) criapl70-2002 informing/intimating about the dishonour of the cheque. The said notice was received by the respondent on 5th May, 1992. It is alleged that inspite of notice, the respondent did not make any arrangement to pay the amount under the dishonoured cheque. Hence, the complaint under section 138 of the Negotiable Instruments Act read with section 420 of the I.P. Code was filed.

6. During the trial, as the complaint is not only under section 138 of the Negotiable Instruments Act, but also was for the offence punishable under section 420 of the I.P. Code, the learned trial court adopted the procedure required to conduct the warrant trial i.e. recording of evidence before the charge, then framing of charge and then recording of evidence after the charge. It appears that the appellant/ complainant examined himself to place on record sufficient material before framing of the charge. In his evidence, he has stated and reiterated as per the recitals of the complaint. Thereafter, the charge was framed after some preliminary questions were put in the cross-examination of the appellant/complainant (7) criapl70-2002 but the appellant was cross-examined at length after the charge was framed. In his cross-examination, the appellant/complainant has given admissions in an unambiguous words that he had filed civil suit in the court of Civil Judge, Junior Division against the respondent for dissolution of the partnership firm and for settlement of accounts. He has admitted that in the said suit, he had pleaded that the respondent was his partner in the said partnership firm engaged in the business of contractorship. He has admitted the terms of the partnership agreement that the appellant has invested his money in the sum of Rs. 4,71,000/- in the business. As against this, the respondent has not invested any amount but as per the terms and conditions of the partnership, he (respondent) being skilled and intelligent in the engineering field, was to invest his expertise in the said partnership business. So far as the profit and loss clause is concerned, it was agreed that the appellant and the respondent are entitled for 50% profit out of that business. He has also admitted that by way of security, the respondent has issued the disputed cheque to him towards his investment in (8) criapl70-2002 the said partnership firm. He also admits that there was profit in the said partnership business. As lateron the dispute arose, the civil suit for dissolution of the partnership was filed. He has also admitted that in all three cheques were issued by the respondent to him as security for the investment of the appellant in the partnership business. He has also admitted that he had filed another criminal complaint as one more cheque issued by the respondent was dishonoured when it was deposited in the bank.

7. In the light of above admissions given by the appellant in his cross-examination falsify the case of the appellant as made out in his complaint that he had given handloan of Rs. 22,000/- to the respondent on 12th January, 1992, for which the cheque was issued by the respondent on 1st February, 1992 drawn on Jalgaon District Central Cooperative Bank, Bhusawal. On the contrary, from the admissions given by the appellant in his cross-examination, it is clear that the cheque given by the respondent in favour of the appellant was issued as the amount (9) criapl70-2002 invested by the respondent in the partnership firm as his capital. Considering this aspect, it cannot be said that the cheque issued by the respondent in favour of the appellant was in discharge of legally enforceable debt of alleged hand-loan of Rs. 22,000/-.

8. In para No. 15 of the judgement of the trial court, there is elaborate discussion about this evidence and thus, the learned trial court has come to the conclusion that as the cheque was not issued to discharge the liability of legally enforceable debt, no offence under section 138 of the Negotiable Instruments Act is made out by the appellant/original complainant. In para 16 of the impugned judgement, the learned trial court has observed that as the cheque was issued by way of security against the monetary investment of the respondent in the partnership firm and the investment of the expertise knowledge to be invested by the respondent as his contribution in the partnership firm, it cannot be said that when the cheque was issued, there was an intention to cheat the appellant. Hence, it is (10) criapl70-2002 concluded by the learned trial court that at the time of issuance of cheque, it cannot be said that, there was an intention to cheat the appellant. Hence, no offence under section 420 of the I.P. Code was made out against the respondent.

9. In the light of discussion of facts above, from the evidence on record led before the court below at the hands of the appellant and the observations of the learned trial court, it cannot be said that the view taken by the learned trial court is not a probable view. On the contrary, the view taken by the learned trial court is the only view which can be taken on the basis of the evidence led before the learned trial court. Apart from it, no perversity is found by this court in the findings recorded by the learned trial court. In the substance, the appeal is devoid of any merit and is liable to be dismissed. The appeal is, therefore, dismissed accordingly. npj/criapl70-2002 [A.V. POTDAR, J.] (11) criapl70-2002