Abhay S. Waghwase JUDGMENT
Abhay S. Waghwase, J.
1. Dissatisfied by the judgment and order of acquittal passed by learned Judicial Magistrate First Class, Pathri, Dist. Parbhani dated 31.03.2005, thereby, acquitting present respondent from offence punishable under section 138 of N.I. Act, original complainant has taken exception to the same by filing instant appeal.
FACTUAL MATRIX
2. S.C.C. No.1123 of 2001 was filed by present appellant setting up a case that, out of friendly relations and due to financial need he gave loan of Rs.50,000/- to the accused. Accused undertook to repay the same. However, even on persistent demand, amount was not repaid. Finally, accused issued cheque drawn on his banker, but on its representation it was dishonoured. Therefore, as required under law, legal notice was dispatched, the same was received and even replied by accused, but he failed to repay the cheque amount within stipulated period, and therefore, proceedings under section 138 of NI Act were instituted.
SUBMISSIONS
On behalf of Appellant : -
3. Learned counsel for appellant submitted that, learned trial court surprisingly acquitted the accused taking hyper technical view regarding non mention of exact month in which loan was said to be borrowed and accepted. That, such hyper technical and pedantic view adopted by learned trial Judge is not permissible, more particularly, when all necessary ingredients for attracting offence were made out.
4. Learned counsel pointed out that, false defence has been taken regarding handing over cheque as guarantors to some alleged loan between brother of complainant and one finance company. That, such defence has not been cogently proved or rebutted as required by law.
5. Lastly, it is submitted that, there is improper appreciation of evidence, non application of mind and therefore it is submitted that, appeal deserves to be allowed.
On behalf of accused : -
6. Learned counsel for respondent accused pointed out that, it was incumbent upon complainant to establish all necessary ingredients for attracting offence under section 138 of NI Act. It is pointed out that at the threshold complainant failed to prove very alleged loan transaction. That, both in complaint as well as notice, when exactly loan was extended has not been proved, rendering the alleged transaction itself doubtful. It is pointed out that, on the contrary defence has rebutted the presumption by adducing overwhelming documentary as well as oral evidence. Therefore, learned trial court has correctly appreciated the same and for above reasons complaint has been dismissed. There is no merit in the appeal and hence it is prayed that the same is dismissed.
7. After appreciating the above submissions, it seems that, here, complaint was filed alleging borrowing of loan by accused to the tune of Rs.50,000/- on account of financial need. Cheque issued towards repayment was dishonoured and hence the complaint.
8. On going through the evidence, it transpires that, in support of his case complainant has adduced his own evidence and placed on record cheque in question, bank memo, legal notice and postal acknowledgment etc.
9. While outrightly denying loan transaction, defence seems to have adduced evidence of one Raghunath Rasve (DW1) as well as one Dnyanoba Gangaram Dahe (DW2). Apart from such oral evidence, accused seems to have placed on record documents, like at Exh.39 to 43 i.e. documents to show that there was loan by brother of complainant and on request of complainant himself, accused stood guarantor and in that capacity issued blank cheque. Precise case is that, the said cheque has been misused.
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