Shamdhan S/O Ramkisan Singhal v. Smt. Vidhya W/O Dhansingh Rajput And ANR.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1260 OF 2017 SHAMDHAN S/O RAMKISAN SINGHAL
VERSUS
SMT. VIDHYA W/O DHANSINGH RAJPUT AND ANR.
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Advocate for Applicant : Mr.Deshpande Jagdish V. APP for Respondent State:Mr.S.P.Tiwari Mr.Nagarkar Kiran M. and Smt.Kulkarni Smita S., Adv., for respondent no.1.
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CORAM : P.R. BORA, J.
Dated: November 16, 2017 ...
PER COURT :- 1.
Heard learned Counsel for the applicant and the learned Counsel appearing for the respondent. 2.
The applicant has filed a complaint under Section 138 of the Negotiable Instruments Act against the respondents. Learned Magistrate in S.C.C. No. 2491/2010, held the respondent guilty for the offense punishable under Section 138 of the Negotiable Instruments Act and sentenced her to pay (i) fine of Rs.5000/-; in default, to suffer simple imprisonment for two months, and further directed her to pay compensation of Rs.4,10,000/-. The amount of fine and compensation, on realization, was directed to be paid to the complainant after completion of appeal period.
3.
The respondent preferred Criminal Appeal No.212/2011 before the Sessions Court at Aurangabad against the judgment passed by the learned Magistrate, and in the appeal, the learned Sessions Judge has set aside the order passed by the learned Magistrate, and has acquitted the respondent of the offense punishable under Section 138 of the Negotiable Instruments Act. Aggrieved thereby, the original complainant has preferred present application seeking leave to appeal against the judgment and order passed by the learned Sessions Court.
4.
Learned Counsel for the applicant submitted that the grounds which, in fact, were not raised during the course of the trial are considered by the Sessions Court, and those have resulted in recording the finding of acquittal by the Sessions Court. Learned Counsel submitted that during the examination in chief before the trial Court, the complainant had specifically deposed about issuance of notice as well as filing on record the office copy of the said notice and has also deposed that though notice was sent by Registered Post Ack.Due., it was not claimed by the accused. Learned Counsel further pointed out that in the cross examination a
suggestion was given to the applicant by the respondent that she had given blank cheque and contents were subsequently written by the accused, impliedly admitting thereby that the cheque in question was issued by her to the applicant. Learned Counsel further submitted that immediately thereafter, another suggestion was given that the said cheque was stolen, and it was misused by the present applicant. Learned Counsel submitted that all these aspects are not appropriately considered by the learned Sessions Court.
5.
Learned Counsel for the respondent strongly opposed for granting leave to appeal. Learned Counsel submitted that the Sessions Court has elaborately discussed as to how the applicant has failed in proving his case under Section 138 of the Negotiable Instruments Act against the present respondent. Learned Counsel submitted that in the cross examination before the trial Court a specific question was put to the applicant as about the service of the notice and the reply was given by the applicant that he is not aware whether notice is served or not. Learned Counsel submitted that admission so given by the applicant, in fact, falsifies the case of the applicant that any such notice was issued by the applicant. Learned Counsel further submits that there are several other
issues which are elaborately dealt with by the Sessions Court as about copy of the notice filed on record. Learned Counsel read out the relevant observations made by the learned Sessions Judge in the impugned judgment and submitted that in view of such observation, no case is made out by the applicant so as to allow his present application.
6.
After having considered the submissions made by the learned Counsel appearing for the parties and on perusal of the judgment passed by the trial Court as well as the judgment delivered by the Sessions Court, it is apparently revealed that the findings recorded by the Sessions Court and the evidence which was recorded before the trial Court, require to be rescrutinized. It appears that self defeating defenses were raised by the respondent while cross examining the applicant on the point of issuance of the notice. The documents on record show the copy of the said notice and the unserved envelope returned to the sender. In view of the fact that the applicant has examined his father-in-law so as to prove from where he brought the amount being paid to the applicant, prima facie he has discharged the burden that he was capable of paying the amount. Issuance of cheque by the respondent had raised a presumption in favour of the holder of the cheque as about
liability. As such, it appears to me that the entire evidence will have to be re-scrutinized. Therefore, I am inclined to allow the present application. Hence, the following order:
ORDER
1.
The Criminal Application (No.1260/2017) is allowed. 2.
Criminal Appeal be registered in accordance with law.
3.
On registration of the appeal, issue notice to the respondent. Smt. S.S.Kulkarni, learned Counsel, waives notice for the respondent. Service Complete. R & P is already received.
4.
List the matter for admission after six weeks. ( P.R. BORA, J. ) ...
agp/1260-17crapl