Monday, 18 July 2016

How to appreciate evidence in case of dishonour of cheque?

The complainant Smt. Laxmibai and accused
Raosaheb are close relatives. It is the case of the
complainant that the accused was in need of money as he
wanted to purchase a flat and so he had asked for hand
loan of Rs.2.5 Lakh. He wanted this money for a period of
three months. It is contended that due to the relationship,
the complainant gave a hand loan of Rs.2.5 Lakh and the
accused assured to return the money within three months.
It is contended that the cheque of similar amount bearing
No.786784 drawn on Marathwada Gramin Bank branch
Asola was given by accused for repayment of loan and it
was a post dated cheque.
3. It is the case of the complainant that when the
amount was not paid she presented the cheque for
encashment and the cheque bounced with the remark that
there was instruction/ direction from the account holder to
stop the payment. After issuing the statutory notice the
complaint came to be filed.
4. The accused pleaded not guilty. Both the sides

examined witnesses. The accused had given reply to the
statutory notice and he had taken the defence that his
cheques were stolen by somebody from his shop and he
had already informed to his bank that his five cheques,
including the cheque in question, were missing and
payment should not be made on the basis of those
cheques. The accused denied that he had taken the hand
loan from the complainant.
5. The husband of the complainant, holding general
power of attorney, filed the complainant and he gave the
evidence. One witness like a Branch Manager of the bank
of the accused was examined to prove that the cheque had
bounced due to directions given by the accused. On the
other hand, the accused examined bank officers of two
banks to show that the complainant and her son had taken
cash credit loan from these two banks and at the relevant
time they were defaulter and they were not in a position to
give such loan to the accused.
6. In the statutory notice, no particulars like the day,
date, month of giving of the hand loan were given and for
first time in the complaint such particulars were given. It is
specific case of the complainant that a post dated cheque

was given to her. The cheque bears the date as 22nd
August, 2000. In the evidence of the witness examined by
complainant, like Chandrakant (PW2), it is brought on the
record that the accused had informed to this bank on 21st
July, 1998 that his five cheques were missing and they
were probably stolen and he had put only signature on the
cheques. He had requested the bank not to honour the
cheques. Another letter dated 30th September, 1999 was
given and even before presentation of the cheque the third
letter dated 30th June, 2000 was given. The 4th letter was
given on 30th September, 2000 and it can be said that the
4th letter was given after presentation of the cheque and
when the cheque was dishonoured (Exhibit-46 and Exhibit-
49). The evidence on record shows that the cheque book
was given to the accused by his bank in the year 1998 and
he had immediately informed the bank that the cheque in
question and 4 more cheques were missing. In view of this
record and the substantive evidence, which cannot be
disputed, the case of the complainant that the hand loan
was given in the year 2000 and for repayment of the hand
loan the cheque was given by the accused has become
doubtful.

7. The two Branch Managers like Bapurao (D.W.1) and
Biharilal (D.W.2) have given evidence that the complainant
and her son had taken cash credit loan from their bank but
both were defaulters at the relevant time. The cash credit
of Rs.75,000?- was given to the complainant and the cash
credit of Rs.1 Lakh was given to her son for grocery
business. In view of these circumstances, it was necessary
for the complainant to show that she had the resources to
give amount of Rs.2.5 Lakh in the month of May, 2000. No
such record is produced and ordinarily an agriculturist, a
lady like the complainant, does not keep such cash amount
in the house. These circumstances have also created
doubt about the case that the amount was given in May,
2000 and against that amount the cheque in question was
given.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.: 76 OF 2003

Sow. Laxmibai Sakharam Misal,

VERSUS
Raosaheb Pandurang Kale,


CORAM:- T. V. NALAWADE, J.
DATED:- 31st JULY, 2015.
Citation: 2016 ALLMR(CRI)2318

1. The appeal is filed against the judgment and order of
acquittal of S.C.C. No.4564 of 2000 which was pending in
the Court of learned J.M.F.C., Parbhani. The learned J.M.F.C.

has acquitted the Respondent in a private complaint filed
under section 138 of Negotiable Instruments Act by the
appellant. Both the sides are heard.
2. The complainant Smt. Laxmibai and accused
Raosaheb are close relatives. It is the case of the
complainant that the accused was in need of money as he
wanted to purchase a flat and so he had asked for hand
loan of Rs.2.5 Lakh. He wanted this money for a period of
three months. It is contended that due to the relationship,
the complainant gave a hand loan of Rs.2.5 Lakh and the
accused assured to return the money within three months.
It is contended that the cheque of similar amount bearing
No.786784 drawn on Marathwada Gramin Bank branch
Asola was given by accused for repayment of loan and it
was a post dated cheque.
3. It is the case of the complainant that when the
amount was not paid she presented the cheque for
encashment and the cheque bounced with the remark that
there was instruction/ direction from the account holder to
stop the payment. After issuing the statutory notice the
complaint came to be filed.
4. The accused pleaded not guilty. Both the sides

examined witnesses. The accused had given reply to the
statutory notice and he had taken the defence that his
cheques were stolen by somebody from his shop and he
had already informed to his bank that his five cheques,
including the cheque in question, were missing and
payment should not be made on the basis of those
cheques. The accused denied that he had taken the hand
loan from the complainant.
5. The husband of the complainant, holding general
power of attorney, filed the complainant and he gave the
evidence. One witness like a Branch Manager of the bank
of the accused was examined to prove that the cheque had
bounced due to directions given by the accused. On the
other hand, the accused examined bank officers of two
banks to show that the complainant and her son had taken
cash credit loan from these two banks and at the relevant
time they were defaulter and they were not in a position to
give such loan to the accused.
6. In the statutory notice, no particulars like the day,
date, month of giving of the hand loan were given and for
first time in the complaint such particulars were given. It is
specific case of the complainant that a post dated cheque

was given to her. The cheque bears the date as 22nd
August, 2000. In the evidence of the witness examined by
complainant, like Chandrakant (PW2), it is brought on the
record that the accused had informed to this bank on 21st
July, 1998 that his five cheques were missing and they
were probably stolen and he had put only signature on the
cheques. He had requested the bank not to honour the
cheques. Another letter dated 30th September, 1999 was
given and even before presentation of the cheque the third
letter dated 30th June, 2000 was given. The 4th letter was
given on 30th September, 2000 and it can be said that the
4th letter was given after presentation of the cheque and
when the cheque was dishonoured (Exhibit-46 and Exhibit-
49). The evidence on record shows that the cheque book
was given to the accused by his bank in the year 1998 and
he had immediately informed the bank that the cheque in
question and 4 more cheques were missing. In view of this
record and the substantive evidence, which cannot be
disputed, the case of the complainant that the hand loan
was given in the year 2000 and for repayment of the hand
loan the cheque was given by the accused has become
doubtful.

7. The two Branch Managers like Bapurao (D.W.1) and
Biharilal (D.W.2) have given evidence that the complainant
and her son had taken cash credit loan from their bank but
both were defaulters at the relevant time. The cash credit
of Rs.75,000?- was given to the complainant and the cash
credit of Rs.1 Lakh was given to her son for grocery
business. In view of these circumstances, it was necessary
for the complainant to show that she had the resources to
give amount of Rs.2.5 Lakh in the month of May, 2000. No
such record is produced and ordinarily an agriculturist, a
lady like the complainant, does not keep such cash amount
in the house. These circumstances have also created
doubt about the case that the amount was given in May,
2000 and against that amount the cheque in question was
given.
8. One more point was argued by learned counsel for
the accused, and that is the evidence given by power of
attorney holder. He placed reliance on the case reported
as AIR 2014 S.C. 630 [A.C.Narayanan V/s State of
Maharashtra and Another], a Bench of 3 Judges of Apex
Court has discussed the law developed on the point of use
of power of attorney holder in a criminal case filed under

section 138 of Negotiable Instruments Act. The law is
summarised at para No.26 which reads as under:
 “26. While holding that there is no serious
conflict between the decisions in MMTC (AIR 2002
SC 182 : 2001 AIR SCW 4793) (supra) and Janki
Vashdeo Bhojwani (AIR 2005 SC 439 : 2004 AIR
SCW 7064) (supra), we clarify the position and
asnwer the questions in the following manner:
 (i) Filing of complaint petition under Section
138 of N.I. Act through power of attorney is
perfectly legal and competent.
 (ii) The Power of Attorney holder can depose
and verify on oath before the Court in order to
prove the contents of the complaint. However,
the power of attorney holder must have witnessed
the transaction as an agent of the payee/ holder
in due course or possess due knowledge
regarding the said transactions.
 (iii) It is required by the complainant to make
specific assertion as to the knowledge of the
power of attorney holder in the said transaction
explicitly in the complaint and the power of
attorney holder who has no knowledge regarding
the transactions cannot be examined as a witness
in the case.
 (iv) In the light of section 145 of N.I. Act, it is
open to the Magistrate to rely upon the
verification in the form of affidavit filed by the

complainant in support of the complaint under
Section 138 of the N.I.Act and the Magistrate is
neither mandatorily obliged to call upon the
complainant to remain present before the Court,
nor to examine the complainant of his witness
upon oath for taking the decision whether or not
to issue process on the complaint under Section
138 of the N.I.Act.
 (v) The functions under the general power of
attorney cannot be delegated to another person
without specific clause permitting the same in the
power of attorney. Nevertheless, the general
power of attorney itself can be cancelled and be
given to another person.
9. In the present matter, neither in the statutory
notice nor in the complaint it is contended that the
husband of the complainant had personal knowledge
regarding the transaction. On the contrary, the
husband has admitted in the cross examination that he
does not know as to when the amount was given by his
wife. In view of these circumstances, it cannot be said
that there is evidence of a person who has knowledge
about the transaction between the accused and the
complainant.

10. The learned counsel for the complainant placed
reliance on one case reported as 2010 (1) Bom. C.R.
(Cri.) 737 (Nagpur Bench) “Gaurav Omprakash
Jaju V/s Shakti Fabrics”. The defence is taken by the
accused, in the present case, that the cheques were
stolen. In view of the facts and circumstances of the
reported case, this Court had held that such defence
was not acceptable. The facts and circumstances of of
each and every case are always different. There is
other convincing material for such defence taken by the
accused in the present matter. Thus, the observations
made by this Court in the reported case are of no use
for the complainant in the present matter.
11. The view taken by the trial Court is possible view
and no other view is possible in view of aforesaid
discussion.
12. In the result, appeal stands dismissed.
[ T. V. NALAWADE, J. ]
Dated:31/07/2015.

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