BIHARILAL RAMNARAYAN MANTRI Vs. ANIL NAROTTAMDAS SHAH

JUDGEMENT

(1.) Both these appeals are preferred under Section 378 of the Code of Criminal Procedure, 1973 against the order of acquittal dated 27th April, 2005 passed in SCC No.324 of 1998 and SCC No.325 of 1998 by the Court of Judicial Magistrate First Class, Pune whereby Respondents (Original Accused) were acquitted of the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code, 1860. The Appellants (Complainant) and the Respondents-Accused in both the cases are the same. That both the cases were decided and disposed of by the learned Magistrate on one and the same set of evidence and, therefore, both these appeals are taken up for hearing together and disposed of by this common judgment.

(2.) The complainant, M/s. Biharilal Mantri is a (Hindu Undivided Family) firm. Mr. Premsukhlal and Sohanlal are the co-owners of the said HUF and were managing the business of it. Accused runs business in the name and style as 'M/s.Namosha'. The complainant and the accused were knowing each other. It is out of acquaintance and business relations, the accused requested the Complainant for loan of Rs.5 Lakhs for a short period and assured to repay the same within three months with interest. The Complainant thus paid Rs.5 Lakhs to the accused and against the same, as a security, accused had issued six cheques, drawn on Mahesh Sahakari Bank Ltd., Pune. Five cheques were of Rs.1 Lakh each towards the principal repayment of the loan; cheque of Rs.10 Lakhs was towards the interest. Cheques were deposited for negotiation on 21.10.1997 but were returned unpaid as its payment was stopped by the drawer. The Complainant thus issued statutory notice on 22nd December, 1997. It was replied by the accused on 31st October, 1997. That since amount was not paid within 15 days from the date of issuance of notice, complaint was filed on 16th January, 1998.

(3.) Before adverting to the evidence, it may be stated that accused in reply to statutory notice dated 13th December, 1997 had stated that entire loan was repaid by him including the interest and, therefore, as on the date of presentation of the cheques, there was no subsisting legally enforceable liability. The learned trial Judge acquitted the accused, as Complainant had admitted his brother's signature on vouchers at Ex.49 to 67 duly acknowledging repayment of loan. I have gone through the cross-examination of P.W.1. This witness was shown the vouchers at Exhibit 49 to 67 which were bearing signatures of the complainant's brother duly acknowledging repayment of loan in between 24th October, 1997 and 2nd December, 1997. In cross-examination, the Complainant stated that; thus "Signature on the receipt dated 24.10.1997 is similar to my brother's signature. Signatures on receipt are similar to signature of my brother and same have been obtained fraudulently".