(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 25 of 2010
Simratmal s/o. Hiralal Gandhi,
Age : 82 years,
Occupation : Nil, .. Applicant
R/o. Telikhunt, Ahmednagar. (Original accused)
versus
1. Kedarnath s/o. Badrinarayan Bang,
Age : 75 years,
Occupation : Business,
R/o. 137/2A, Mohan Baug,
Delhi Gate, Ahmednagar.
2. Hiralal Simratmal & Company,
Telikhunt, Ahmednagar.
3. Ramlabai Subhash Gandhi,
Age : 52 years,
Occupation : Household,
R/o. Ashish Bungalow,
Maniknagar, Ahmednagar,
4. Rajendra s/o. Simratmal Gandhi, .. Respondents
Age : 51 years, (Original complainant
Occupation : Business, & other co-accused)
R/o. Surabhi Apartment,
Opp. I.T.I., Burudgaon Road,
Ahmednagar.
.......................
::: Downloaded on - 09/06/2013 17:35:08 :::
(2)
Mr. V.S. Bedre, Advocate, for the applicant.
Mr. L.B. Pallod, Advocate, for respondent no.1.
Respondent nos.2 and 4 served (Absent).
Mr. V.S. Badakh, Advocate, for respondent no.3.
........................
CORAM : SHRIHARI P. DAVARE, J.
ig DATE : 1ST AUGUST 2011
ORAL JUDGMENT :
1. Heard Adv. Mr. V.S. Bedre, for the applicant; Adv. Mr.
L.B. Pallod, for respondent no.1, and Adv. Mr. V.S. Badakh, for
respondent no.3.
2. None for respondent nos.2 and 4, although served.
3. Rule. Rule made returnable forthwith. With the
consent of learned Counsel for parties, taken up for final hearing.
4. By the present application preferred by the applicant
(original accused) under Section 482 of the Code of Criminal
Procedure, 1973, prayed that the order passed by the learned 6th
::: Downloaded on – 09/06/2013 17:35:08 :::
(3)
Joint Civil Judge (Senior Division) & Judicial Magistrate (F.C.),
Ahmednagar, on Exhibit 48, in Summary Trial Case No.
5065/2007, dated 31st October 2009, be quashed and set aside.
5. The applicant herein is the original accused no.2 and
the respondent no.1 herein is the original complainant. It is
contended that as there were close friendly relations between the
applicant and respondent no.1, and since the applicant was in
need of amount, the complainant i.e. respondent no.1 herein paid
the amount of Rs. 50,000/- by way of hand loan. It is further
contended that the accused had given cheque of Rs. 50,000/- on
20-5-2007 to the complainant. The complainant presented the
said cheque for encashment purpose. However, same was
dishonoured and returned unpaid with the endorsement of closure
of account. Hence, the complainant issued notice to the accused
persons on 30-8-2007 which was received by them on or about
5-9-2007 and 7-9-2007. However, inspite of the receipt of the
said notice, accused failed to pay the cheque amount to the
complainant. Hence, the complainant filed complaint under
Section 138 of the Negotiable Instruments Act, 1881, against the
accused.
6. It is the contention of the accused that the complainant
misused the cheque which was misplaced and contended that
::: Downloaded on – 09/06/2013 17:35:08 :::
(4)
there are material alterations in the cheque. Hence, the accused
preferred an application Exhibit 48 before the learned trial court
on 26-10-2009 stating therein that he has grievance about
handwriting of the cheque, and therefore, requested the learned
trial court to send the said cheque to the handwriting expert and
call for the report in respect of name and date on the said cheque.
The complainant opposed the said application by filing his say,
and submitted that there is no suggestion in the cross examination
conducted by the accused in respect of the prayer in the said
application. It is also contended in the said reply by the
complainant, that the said application was preferred by the
accused at the belated stage and after recording statement of the
accused under Section 313 of the Code of Criminal Procedure,
1973. It is pointed out in the said say, that there is no reasonable
cause to allow the said application and there are no bona fides of
the accused reflected in the said application, and the said
application was preferred by the accused just to protract the
proceeding. Considering the contents of the said application
preferred by the accused, as well as, contents of the reply filed by
the complainant, and also considering rival submissions
advanced by the learned Counsel for the parties, learned trial
court rejected the said application by order dated 31st October
2009. Being aggrieved and dissatisfied by the said order, the
accused i.e. applicant herein has preferred the present Application
::: Downloaded on – 09/06/2013 17:35:08 :::
(5)
for the prayers as set out herein above.
7. On perusal of the copy of the application dated 26th
October 2009, preferred by the applicant herein i.e. original
accused before the learned trial court, it is apparent that the
grievance of the accused was in respect of the handwriting on the
said cheque, more particularly, as regards, the name and date on
the said cheque and not beyond that. At this juncture, it is
significant to note that there is no grievance of the accused in
respect of the signature on the said cheque. The complainant
rightly objected to the said application stating that there was no
suggestion in the cross examination of the complainant
conducted by the accused in respect of the grievance made in the
said application and the said application was preferred by the
accused at the belated stage i.e. after recording statement of the
accused under Section 313 of the Code of Criminal Procedure.
8. In the said context, the learned trial court has rightly
observed thus:
” Section 20 of the Negogiable Instruments Act,
1881, states that when a person signs and delivers
blank cheque to another, he thereby gives prima
facie authority to holder thereof to make or::: Downloaded on – 09/06/2013 17:35:08 :::
(6)complete it for any amount specified therein and
not exceeding the amount covered by stamp. Afterperusal of said section 20, it appears that the
drawer of a cheque can issue blank cheque to other
person and by his said act he gives an authority to
said concern person to fill up its contents. Aftercombine reading of said section 20 and 138 of the
“Act” it appears that to made out an offence inquestion against the accused, the necessary
ingredient is that the cheque should be drawn on
the account of drawer and it is immaterial thecontents therein are in whose handwriting as per
section 20 of the “Act””.
Accordingly, learned trial court has rightly rejected the said
application, after making the above observations.
9. In the circumstances, considering factual, as well as,
legal position, it is amply clear that there is no substance in the
present application and the prayers made by the applicant /
accused therein, and there is no glaring defect in the impugned
order passed by the learned trial court, and hence, no interference
is called for therein, by exercising inherent powers of this Court
under Section 482 of the Code of Criminal Procedure, and
::: Downloaded on – 09/06/2013 17:35:08 :::
(7)
therefore, present Criminal Application deserves to be rejected.
10. In the result, present Criminal Application stands
dismissed, and Rule is discharged accordingly.
( SHRIHARI P. DAVARE )
JUDGE
…………………….
bgp/ka25
::: Downloaded on – 09/06/2013 17:35:08 :::
