KISHOR BIRADMAL BHANDARI Vs. CHANDRAKANT KRISHNA GAWAS

JUDGEMENT

(1.) The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India and inherent powers of this Court under Sec. 482 of Code of Criminal Procedure. The petitioner takes exception to order dtd. 21/2/2023 passed by the learned Judicial Magistrate First Class 'A' Court, Vasco-DaGama below Exhibit 45 in Criminal Case No.OA/244/OA/NIA/2019/A rejecting the petitioner's application under Sec. 145(2) of the Negotiable Instruments Act.

(2.) The respondent is the complainant. The complaint is filed under Sec. 138 of the Negotiable Instruments Act before the Court of learned Judicial Magistrate First Class, Vasco. It is alleged that complainant needed finance to revamp his business operations. Services of the accused were engaged as a facilitator for obtaining finance from a private licenced moneylender. The accused examined the financial solvency and credentials of the complainant and promised to arrange a loan of Rs.14.00 crores from moneylender. The accused quoted commission of 1% of required finance. The accused collected from the complainant, all the necessary papers required for the purpose of the proposed loan and also collected in advance, his full commission amounting to Rs.14,00,000.00. The amount was transferred by R.T.G.S. Eventually, the accused expressed his inability to arrange the promised loan and agreed to refund the commission amount of Rs.14.00 lakhs collected by him from the complainant with interest. The accused issued a cheque of Rs.15,47,000.00 which included principal amount and the agreed interest. The cheque was dishonoured for want of sufficient funds. Notice dtd. 3/6/2019 was issued to the accused demanding the amount. The accused vide letter dtd. 10/7/2019 regretted his inability to honour the cheque and issued a fresh cheque dtd. 25/7/2019. The said cheque was dishonoured on 30/9/2019 for want of sufficient funds. Demand notice dtd. 4/10/2019 was issued to the accused. The notice was returned undelivered by the post office on the ground that the accused had left the address at which it was sent. The complainant thereafter personally served the notice on accused. Complaint was filed. Process was issued against accused.

(3.) The petitioner preferred an application under Sec. 145(2) of the Negotiable Instruments Act (N.I. Act) seeking leave to permit the accused to cross-examine the complainant. The application was rejected vide order dtd. 21/2/2023. While rejecting the application, the learned Magistrate observed that, vague statement is made in the application that there is no legally enforceable liability. There are no particulars set out by the accused to substantiate this statement. It is simply stated that material facts have been suppressed and false and fabricated complaint is filed. Even in written arguments filed by the accused, no probable defense is set out. Vague statements have been made that complainant has concocted a false story to harass the accused and grab the money. Loose statements are made that the accused does not owe any debt/liability and accused wants to cross-examine the complainant to protect his interest and bring the truth before the Court. Based on vague statements the Court cannot arrive at the satisfaction that accused has a probable defense for which complainant must be recalled and accused must be granted leave to cross-examine complainant. The complainant cannot be recalled only to give accused the pleasure of cross-examining him. The signature on the cheque is not disputed. Mandatory presumption has to be raised under Sec. 139 of the NI Act that the cheque was issued in discharge of liability. It is for the accused to rebut this presumption. The accused has to set out in the application under what circumstances a cheque admittedly signed by him landed in the hands of the complainant. No such explanation has been given in the application. The application is conspicuously silent as to on what points the accused proposes to cross-examine the complainant. The other statement made by the accused is that the requirement of serving demand notice has not been complied. In order to take defense of non-service of demand notice, the accused was first required to show his bonafides by depositing the entire cheque amount before the Court. The accused has not done so within 15 days from receipt of summons. The accused cannot contend that there was no service of notice on him. There is no reason to grant the accused leave to cross-examine the complainant. The accused can displace the presumption, if any, arising under Sec. 118 and 139 of the Act by leading defense evidence, if so advised. While giving the said findings the learned Magistrate has relied upon the decisions in the case of Meters and Instruments Private Limited & Anr. v/s. Kanchan Mehta,2018 (1) SCC (Cri) 477. Rajesh Agarwal v/s. State & Anr;2010 (4) RCR (Cri) 124. Rukmakar alias Bharat Tulshidas Naik v/s. Santosh Shaba Gaokar;Criminal Writ Petition No.35/2019 decided on 05/04/2019. Deepak Surlakar v/s. Dominica A. Rodrigues,Criminal Writ Petition No.22/2023, decided on 11/1/2023. and C. C. Alavi Haji v/s. Palapetty Muhammed & Anr.,2007 (6) SCC 555.