VISHAL VIJAY PALYEKAR Vs. ASHIWIN NAIK

JUDGEMENT

(1.) This revision is directed against the concurrent findings of the trial Magistrate and the Sessions Judge holding the applicant/original accused guilty of offence punishable under Section 138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment till the rising of the Court and to pay a compensation of Rs. 60,000/- and in default of payment of compensation to undergo simple imprisonment for a period of 6 months. The facts which are material for deciding this revision are as under:

(2.) I have heard the learned Counsel for the applicant and the learned Senior Counsel for the respondent and with the help of both, I have gone through the evidence on record. The complainant had not stated in the complaint the details as to how he raised a sum of Rs. 1,75,000/- for being advanced to the applicant, though he did state in para 4 that he collected this amount by borrowing from his brother, mother, father and his local friends. The details as to how the amount was collected came to be discussed in the course of cross examination. It was stated by the complainant that a sum of Rs. 25,000/- was provided by the complaint's brother, another sum of Rs. 25,000/- came from complainant's brother's friend by name Damu, a sum of Rs. 75,000/- was with the complainant in cash and a sum of Rs. 50,000/- which was lying in cash with the complainant's mother was provided by the complainant's mother. The complainant could not tell the surname of Damu, the friend of complainant's brother as also the name of the other friend Anand Prabhudessai, who according to the brother of complainant was a Municipal Councilor. The evidence of complainant's brother corroborates the evidence of the complainant.

(3.) The learned Counsel for the applicant submitted first that it was improbable that the complainant and his mother could have had sums of Rs. 75,000/- and Rs. 50,000/- in cash with them. He also wondered as to how Damu, whose surname was also not known to the complainant could rush to his house and come with Rs. 25,000/- in cash for being advanced to a stranger. The learned Counsel submitted that the evidence of collecting this cash of Rs. 1,75,000/- sought to be given by the complainant and his brother should not have been accepted by the learned trial Magistrate as well as the learned Sessions Judge. The learned Counsel has a grievance that reliability of this evidence was not at all discussed by the Courts below. He submitted that the complainant had failed to examine Damu, who is supposed to have advanced a sum of Rs. 25,000/- as also complainant's mother who is supposed to have given a sum of Rs. 50,000/-. Therefore, according to him in the face of denial by the accused-applicant of having received any sum from the complainant and in the face of failure of the complainant to examine Damu or complainant's mother as also the improbability of huge sum of Rs. 1,75,000/- having been collected and advanced to the applicant, the Courts below should have rejected the evidence of the complainant about such advance or cheques being issued for repaying the amount so allegedly borrowed. He submitted that this was enough to rebut the presumption under Section 139 of the Negotiable Instruments Act. He submitted that absence of particulars in the complaint about the manner in which the amount was collected was fatal to the complainant's case. For this purpose, he relied on two judgments of this Court. In Kishore Shankar Singapurkar v. State of Maharashtra & Ann, 2003 AllMR(Cri) 1867, this Court had observed that the complainant should have narrated the entire history of transaction and it was the bounden duty of every complainant to narrate full history of transaction including the past history and the litigation arising out of it whenever he files a complaint in criminal court. The Court went on to observe, if the complainant does not do so, the Court is very much likely to be mislead. These observations come in the context of peculiar facts in that case. Before the said complaint for offence punishable under Section 138 of the Negotiable Instruments Act was filed, there was another proceeding between the parties before the Chief Metropolitan Magistrate and in that proceeding the Chief Metropolitan Magistrate had directed the complainant to return all the cheques to the accused and ask the accused to return the car to the complainant. It was these particulars about the previous litigation which were not pleaded and which led to the observations that it was bounden duty of the complainant to disclose everything. This judgment, therefore, cannot be an authority for the proposition that the complainant is obliged to disclose in the complaint the source from which he provided the money to the accused.