PARVAT SINGH Vs. SAHEBRAO S/O. MALHARI CHEMATE

JUDGEMENT

(1.) The Appeal is filed against the Judgment and order of S.C.C. No. 546 of 2005 which was pending in the Court of J.M.F.C. Ahmednagar. It was a private complaint filed by Appellant for offence punishable under Section 138 of the Negotiable Instrument Act against the Respondent. The Respondent is acquitted of that offence. Criminal Application No. 3127 of 2011 is filed by the Appellant for permission to lead evidence in Appeal under Section 391 of the Code of Criminal Procedure. The complainant wants to prove one document which can be described as receipt or written promise to pay sum of Rs. 28,000/- to the complainant. This document is allegedly signed by Respondent accused. Both the sides were heard on this limited point.

(2.) The cheque which bounced, was admittedly signed by the accused, Respondent. The complaint was filed after following the procedure like giving statutory notice etc. This notice was not replied, though it was received by the accused. It appears that the accused took the defence that he had given the cheque to the complainant for safe custody and the complainant has mis-used the cheque. On the other hand, it is the case of the complainant that hand-loan of Rs. 28,000/- was given on 25th May, 2005 and the cheque of this amount was given to him by Respondent for making repayment of the hand-loan. The trial Court has held that the complainant has failed to prove that the cheque was given by the accused as against the existing liability. This finding is given due to the circumstance like, non production of the other record which was created at the time of hand loan transaction. The complainant admitted in evidence that receipt in respect of the amount was also given by the accused. The receipt, the document which is sought to be produced in Appeal, was not produced before the J.M.F.C. and this circumstance is considered against the complainant. It can be said that the parties knew each other from prior to date of issue of cheque. There is no sufficient discussion on the presumptions which are available under Section 118 and 139 of the Negotiable Instrument Act. The accused has not dared to step in the witness box to say something about his defence on oath. This circumstance also not considered by the trial Court. It can be said that only because the evidence of the complainant was felt insufficient, the finding on the first point was given against him and the accused came to be acquitted.

(3.) In view of the aforesaid circumstances, this Court holds that opportunity needs to be given to the complainant to prove so called receipt given by the accused on the date of the transaction of the hand-loan. No prejudice will be caused to the accused as he will have an opportunity to cross-examine the complainant on the said point and even the accused can adduce evidence in the defence. For these reasons, this Court holds that Judgment and order of acquittal delivered by the learned J.M.F.C. Ahmednagar needs to be set aside and the matter needs to be remanded back.