VIJAYA KUNDANLAL SHARMA Vs. SATYAWAN BHIKAJI JADHAV

JUDGEMENT

(1.) This is an application seeking leave to appeal challenging the Judgment and Order passed by Judicial Magistrate, Court No. 14, Pune in S.C.C. No. 17758/2009 dated 30/09/2010. The present applicant is the original complainant. It is the case of the prosecution that the complainant was acquainted with the accused. They had family relations. The accused had taken hand loan from the complainant and had refunded the amount to the complainant within the stipulated time. Hence, the complainant had reposed faith in the accused. The complainant has alleged that in February 2008, the complainant had given hand loan of Rs. 5,80,000/- on condition that the said amount would be returned within 10 months. Upon demand by the complainant, accused had issued 7 cheques of various amounts to be drawn on ICICI Bank. The said cheques were presented for encashment by the complainant. The cheques were dishonored and returned on 04/02/2009, 17/02/2009 & 19/02/2009 with the remark "Account closed". The complainant had issued a statutory notice to the accused on 23/02/2009 which was duly received by the accused on 28/02/2009. The accused had not paid the amount within 15 days and therefore the complainant had filed the said complaint. In the course of trial, the complainant had filed his affidavit to prove the offence. The accused had examined himself on oath and had also examined another witness namely Pralhad. In his deposition, the complainant had stated that since the accused had returned the borrowed amount on the earlier occasions, he had further extended hand loan to him. The accused had contended that he had borrowed Rs. 50,000/- from the complainant for his partnership firm Satyam Computers and had given 10 cheques towards security of the said loan. According to the accused, he had refunded the said amount. However, instead of returning the cheques, the complainant had presented them for encashment.

(2.) It is the case of the accused that he was not liable to pay any legally enforceable debt to the complainant. The witness examined by the accused has categorically stated that he was acquainted with the complainant and the accused. According to him, the complainant had disclosed to him that the accused was not refunding Rs. 50,000/-. He had approached the accused and requested him to refund Rs. 50,000/-. The accused has refunded Rs. 50,000/-. Accused has disclosed to him that the complainant was not returning the cheques.

(3.) Learned Magistrate upon perusal of substantive evidence has observed that the complainant was having one small shop. According to the complainant, the amount was given to the accused in cash from Bhishi after selling one small vehicle. The complainant had not submitted any documentary proof of selling the vehicle, neither there was evidence to show that she had received the amount from Bhishi collection and therefore the question to be determined was, as to whether she had sufficient source of income to give Rs. 5 lacs to the accused. The statement of account operated by the complainant in Mahesh Cooperative Bank does not reveal that she had withdrawn any amount from the Bank in February 2008.