{"id":130697,"date":"2010-02-16T00:00:00","date_gmt":"2010-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramkrishna-urban-co-operative-vs-shri-rajendra-bhagchand-warma-on-16-february-2010"},"modified":"2015-10-20T10:29:36","modified_gmt":"2015-10-20T04:59:36","slug":"ramkrishna-urban-co-operative-vs-shri-rajendra-bhagchand-warma-on-16-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramkrishna-urban-co-operative-vs-shri-rajendra-bhagchand-warma-on-16-february-2010","title":{"rendered":"Ramkrishna Urban Co-Operative … vs Shri Rajendra Bhagchand Warma on 16 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ramkrishna Urban Co-Operative … vs Shri Rajendra Bhagchand Warma on 16 February, 2010<\/div>\n
Bench: P. R. Borkar<\/div>\n
                                 (1)\n\n\n\n\n                                                                    \n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         BENCH AT AURANGABAD\n\n\n\n\n                                            \n                CRIMINAL APPLICATION NO. 898 OF 2009\n\n\n\n\n                                           \n    Ramkrishna Urban Co-operative Credit             ..       Applicant\n    Society Ltd., Maliwada, Ahmednagar,\n    through Authorised Signatory,\n\n\n\n\n                                 \n    Shri Chhagan Tukaram Raut, \n    Age. 36 years, Occ. Service,\n                      \n    R\/o. Mutha Chambers, Maliwada,\n    Ahmednagar.\n                     \n                                 Versus\n       \n\n\n    Shri Rajendra Bhagchand Warma                    ..       Respondent\n    Age 38 years, Occ. Business,\n    \n\n\n\n    R\/o. 2044, Daware Galli,\n    Near Vithal Mandir, Ahmednagar.\n\n\n\n\n\n    Shri L.B. Pallod, Advocate for the applicant.\n\n    Shri J.M. Murkute, Advocate for sole respondent.\n\n\n\n\n\n                            CORAM           :        P.R. BORKAR,J.\n<\/pre>\n
                            RESERVED ON     :        03.02.2010\n                            PRONOUNCED ON   :        16.02.2010\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 15:37:25 :::<\/span>\n                                        (2)<\/span>\n\n\n\n\n                                                                          \n    J U D G M E N T :-\n\n\n\n\n                                                  \n<\/pre>\n
    1.         This   is   an   application   for   leave   to   file   appeal <\/p>\n
    against the order of acquittal passed by the learned Judicial <\/p>\n
    Magistrate, First Class, Court No.1, Ahmednagar in S.T.C. No. <\/p>\n
    960 of 2008, decided on 21.01.2009, whereby the respondent is <\/p>\n
    acquitted   of   offence   punishable   under   section   138   of   the <\/p>\n
    Negotiable Instruments Act.\n<\/p>\n
    2.         Brief facts giving rise to this application may be <\/p>\n
    stated as below:-\n<\/p>\n
    .          Present   applicant   has   filed   private   complaint <\/p>\n
    alleging   that   the   complainant   is   a   co-operative   society <\/p>\n
    registered under the Maharashtra Co-operative Societies Act, <\/p>\n
    1960.  It is doing banking business.  The respondent for his <\/p>\n
    business had taken loan of Rs. 2,00,000\/- (Rupees Two Lakhs <\/p>\n
    Only)   on   18.10.2000   and   for   satisfaction   of   the   loan,   he <\/p>\n
    executed promissory note, mortgage deed, guarantee deed etc. <\/p>\n
    The respondent has agreed to repay amount from time to time <\/p>\n
    by   installments.     Accordingly,   cheque   No.   500276   of   Rs.\n<\/p>\n
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\n                                         (3)<\/span><\/p>\n
    87,209\/-   drawn   on   Ahmednagar   Merchants   Co-operative   Bank <\/p>\n
    Ltd., Branch – Dalmandai, Ahmednagar, was issued.  The cheque <\/p>\n
    was   dated   24.01.2008.     When   the   complainant\/applicant <\/p>\n
    presented   the   cheque,   it   was   dishonoured   on   the   ground   of <\/p>\n
    insufficiency   of   funds.     Thereafter,   on  11.02.2008   a   notice <\/p>\n
    was  issued   by   the   complainant\/applicant,   but   inspite   of  the <\/p>\n
    same, the amount was not paid by the respondent and therefore <\/p>\n
    the complaint was filed.\n<\/p>\n
    3.          The   learned   Magistrate   after   considering   the <\/p>\n
    evidence   led   by   both   sides,   passed   the   order   of   acquittal <\/p>\n
    acquitting the respondent of offence punishable under section <\/p>\n
    138   of   the   Negotiable   Instruments   Act,   mainly   on   three <\/p>\n
    grounds.     Firstly,   it   is   held   that   as   many   as   ten   blank <\/p>\n
    cheques   were   obtained   by   the   applicant   bank   while <\/p>\n
    sanctioning\/disbursing   loan  as   security  and  one  of   them  was <\/p>\n
    used   in   the   present   case;   secondly,   there   is   bar   of <\/p>\n
    limitation;  and  thirdly,   amounts   paid   by   the   respondent,   in <\/p>\n
    respect   of   which   he   has   produced   receipts   in   defence,   were <\/p>\n
    not   reflected   in   the   extract   of   account   produced   on   record <\/p>\n
    and as such it is not proved that the amount of Rs. 89,209\/-\n<\/p>\n
    was due on the date of the cheque.  As against said decision <\/p>\n
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\n                                          (4)<\/span><\/p>\n
    of   acquittal,   the   applicant\/complainant   wishes   to   file   the <\/p>\n
    appeal and therefore he filed this application under section <\/p>\n
    378 (4) of the Code of Criminal Procedure for leave to file <\/p>\n
    appeal.\n<\/p>\n
    4.          Heard   Adv.   Shri   L.B.   Pallod   for   the   applicant   and <\/p>\n
    Adv. Shri J.M. Murkute for the respondent.\n<\/p>\n
    5.<\/p>\n
                The   Trial   Court   in   para   12   onwards   has   considered <\/p>\n
    the   evidence   on   record.     The   respondent\/accused   in   his <\/p>\n
    affidavit in lieu of examination-in-chief has stated that he <\/p>\n
    had repaid the entire loan in the year 2005 and he possessed <\/p>\n
    receipts thereof.   He also stated that while granting loan, <\/p>\n
    ten blank cheques signed by him were obtained.  No cheque was <\/p>\n
    issued   by   him   of   amount   due   towards   loan.     It   is   observed <\/p>\n
    that   in   the   cross-examination   said   evidence   has   remained <\/p>\n
    unshaken and the suggestions put on behalf of the complainant <\/p>\n
    were denied.  The Court also came to a conclusion in para 13 <\/p>\n
    that the evidence of the accused\/respondent was reliable.  It <\/p>\n
    is   proved   that   he   had   given  10   blank   signed  cheques  to   the <\/p>\n
    complainant.   In order to substantiate this, he has examined <\/p>\n
    P.W.3-Ashok   Jindam,   who   was   officer   of   the   Ahmednagar <\/p>\n
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\n                                          (5)<\/span><\/p>\n
    Merchants   Co-operative   Bank.     Said   witness   has   stated   that <\/p>\n
    cheque   book   containing   cheque   No.   500276   was   given   to   the <\/p>\n
    accused\/respondent on 04.10.2000.  He proved document Exh.46.\n<\/p>\n
    He   also   produced   account   extract   at   Exh.47.     This   evidence <\/p>\n
    was   also   unshaken   in   cross-examination.     The   witness   was <\/p>\n
    found reliable witness by the Trial Court.   The document at <\/p>\n
    Exh.46 shows that the cheque book bearing cheque in question <\/p>\n
    was   issued   to   the   respondent\/accused   on   04.10.2000.   It   was <\/p>\n
    cheque   book   contained   cheque   Nos.   500276   to   500300.\n<\/p>\n
    Thereafter on 13.11.2001 another cheque book was issued.   On <\/p>\n
    22.02.2005   third   cheque   book   was   issued   to   the   respondent.\n<\/p>\n
    The account extract at Exh.47 clearly shows that the cheques <\/p>\n
    bearing Nos. 500288 to 500299 were used till 24.09.2001 and <\/p>\n
    thereafter   cheques   issued   in   the   second  cheque   book  bearing <\/p>\n
    cheque   Nos.   783491   and   783498   were   used   till   28.02.2005.\n<\/p>\n
    Thereafter,   cheques   from   third   cheque   book   bearing   Nos.\n<\/p>\n
    823492   to   823500   were   used   till   07.03.2008.     So,   it   was <\/p>\n
    observed   by   the   learned   Magistrate   that   all   this   clearly <\/p>\n
    indicated   that   the   accused\/respondent   was   not   using   cheques <\/p>\n
    in   the   year   2008   from   the   cheque   book   in   which   cheque   No. <\/p>\n
    500276   was   included.     So,   all   these  circumstances   supported <\/p>\n
    the case of the respondent that the respondent had issued 10 <\/p>\n
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\n                                            (6)<\/span><\/p>\n
    blank   cheques   signed   by   him   to   the   complainant   in   the   year <\/p>\n
    2000 while sanctioning the loan.\n<\/p>\n
    6.          The   learned   advocate   Shri   Pallod   argued   that   even <\/p>\n
    accepting   that   this  to   be   so,   still  it   will  not  affect   the <\/p>\n
    case   of   the   complainant.     He   relied   upon   the   case   of <\/p>\n
    Purushottam   Maniklal   Gandhi   V\/s.   Manohar   K.   Deshmukh,   2007 <\/p>\n
    (2)   Bom.C.R.   (Cri)   38.     In   that   case   Single   Bench   of   this <\/p>\n
    Court has observed in para 18 that it is open to a person to <\/p>\n
    sign   and   deliver   a   blank   or     incomplete   cheque   and   it   is <\/p>\n
    equally open for the holder to fill up blanks and specify the <\/p>\n
    amount   therein.     This   does   not   amount   to   any   alteration   in <\/p>\n
    the cheque, since the cheque was not initially issued for any <\/p>\n
    different specified sum which was changed.  In para 19 of the <\/p>\n
    said   case   it   is   observed   that   when   a   drawer   of   a   cheque <\/p>\n
    delivers a signed cheque, he obviously gives an authority to <\/p>\n
    the   holder   to   put   a   date   of   his   choice.     So,   it   is   argued <\/p>\n
    that   merely   because   blank   cheques   were   given   by   the <\/p>\n
    respondent to the complainant, that does not mean that said <\/p>\n
    cheques   are   not   valid.     Moreover,   so   far   as   limitation   is <\/p>\n
    concerned,   in   the   same   case   it   is   observed   that   limitation <\/p>\n
    would start from the date which is (put) on the cheque.  The <\/p>\n
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\n                                          (7)<\/span><\/p>\n
    learned   advocate   also   referred   to   para   22   of   the   said   case <\/p>\n
    and argued that even for the time barred debt when there is <\/p>\n
    fresh promise to pay, it would be legally enforceable debt.\n<\/p>\n
    7.          Another case  cited  is  the  case  of  Single  Bench  of <\/p>\n
    this   Court   in  Balagi   Agencies   Pvt.   Ltd,   V\/s.   Vilas   Bagi   of <\/p>\n
    Bagi Packers Ltd., and Anr., 2008 ALL MR (CRI) 2230.  Therein <\/p>\n
    the drawer of cheque delivered a signed cheque.   It is held <\/p>\n
    that thereby he gave authority to the holder to put a date of <\/p>\n
    his choice.   As per Section 20 of the Negotiable Instruments <\/p>\n
    Act,   the   holder   had   authority   to   fill   in   the   date   and <\/p>\n
    limitation had to be reckoned from that date and therefore it <\/p>\n
    cannot   be   said   that   the   instrument   had   become   time   barred <\/p>\n
    being presented beyond the period of six months from the date <\/p>\n
    when   it   was   given.     However,   in   both   these   cases   of <\/p>\n
    Purushottam and Balagi Agencies Pvt. Ltd., amounts had become <\/p>\n
    due   before   cheques   were   issued.     So,   there   was   existing <\/p>\n
    liability to pay when the cheques were issued.\n<\/p>\n
    8.          Section 138 of the Negotiable Instruments Act is as <\/p>\n
    follows:-\n<\/p>\n
                            “138.   Dishonour   of   cheque   for <\/p>\n
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\n                              (8)<\/span><\/p>\n
     insufficiency,   etc.,   of   funds   in   the   account.   –
\n     Where   any   cheque   drawn   by   a   person   on   an   account <\/p>\n
     maintained by him with a banker for payment of any
\n     amount of money to another person from out of that
\n     account for the discharge, in whole or in part, of
\n     any   debt   or   other   liability,   is   returned   by   the
\n     bank unpaid, either because of the amount of money <\/p>\n
     standing   to   the   credit   of   that   account   is
\n     insufficient   to   honour   the   cheque   or   that   it
\n     exceeds   the   amount   arranged   to   be   paid   from   that
\n     account   by   an   agreement   made   with   that   bank,   such
\n     person shall be deemed to have committed an offence <\/p>\n
     and shall, without prejudice to any other provision
\n     of   this   Act,   be   punished   with   imprisonment   for   a <\/p>\n
     term   which   may   be   extended   to   two   years,   or   with
\n     fine   which   may   extend   to   twice   the   amount   of   the
\n     cheque, or with both :\n<\/p>\n
          Provided   that   nothing   contained   in   this
\n     section shall apply unless –\n<\/p>\n
          (a) the cheque has been presented to the bank <\/p>\n
     within   a   period   of   six   months   from   the   date   on
\n     which   it   is   drawn   or   within   the   period   of   its
\n     validity, whichever is earlier;\n<\/p>\n
           (b) the payee or the holder in due course of
\n     the cheque, as the case may be, makes a demand for
\n     the payment of the said amount of money by giving a <\/p>\n
     notice   in   writing,   to   the   drawer   of   the   cheque,
\n     within thirty days of the receipt of information by
\n     him   from   the   bank   regarding   the   return   of   the
\n     cheque as unpaid; and<\/p>\n
           (c) the   drawer   of   such   cheque   fails   to   make <\/p>\n
     the   payment   of   the   said   amount   of   money   to   the
\n     payee or as the case may be, to the holder in due
\n     course   of   the   cheque   within   fifteen   days   of   the
\n     receipt of the said notice.\n<\/p>\n
          Explanation   –   For   the   purposes   of   this
\n     section, ‘debt or other liability’ means a legally
\n     enforceable debt or other liability.”\n<\/p>\n
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\n                                         (9)<\/span><\/p>\n
    9.          It is argued that the cheque drawn must be for the <\/p>\n
    discharge,   in   whole   or   in   part,   of   any   debt   or   other <\/p>\n
    liability.     So   the   debt   or   other   liability   must   be   in <\/p>\n
    existence   when   the   cheque,   whether   blank   or   post   dated   was <\/p>\n
    issued.     In   this   case   the   accused-respondent   issued   the <\/p>\n
    cheque   in   question   as   security   for   loan   before   loan   amount <\/p>\n
    was disbursed.   So, cheque was not towards any existing debt <\/p>\n
    or   liability.     In   case   of   loan   transaction,   borrower   is   in <\/p>\n
    need of money and therefore he borrows loan amount from some <\/p>\n
    one with understanding that the loan amount would be repaid <\/p>\n
    in   lumpsum   on   a   future   date   or   in   installments   from <\/p>\n
    particular future date onwards periodically, with or without <\/p>\n
    interest.  It is not transaction of loan, if the amount is to <\/p>\n
    be repaid the moment it is paid to borrower.  So, provisions <\/p>\n
    of   Section   138   of   the   Negotiable   Instruments   Act   are   not <\/p>\n
    attracted.\n<\/p>\n
    10.         We may consider object and purpose for introducing <\/p>\n
    amendment   to   the   Negotiable   Instruments   Act,   1981   by <\/p>\n
    Amendment   Act,   1988,   as   stated   in   the   Amendment   Act   and <\/p>\n
    various   authorities   to   facilitate   correct   interpretation   of <\/p>\n
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\n                                         ( 10 )<\/p>\n
    the   provisions.     The   object   and   reasons   clause   of   the   bill <\/p>\n
    which introduced the Amending Act of 1988 would show that the <\/p>\n
    new   Chapter   XVII   was   incorporated   specifically   to   “enhance <\/p>\n
    the acceptability of cheques in settlement of liabilities by <\/p>\n
    making the drawer liable for penalties in case of bouncing of <\/p>\n
    cheques due to insufficiency of funds in the accounts or for <\/p>\n
    the   reason   that   it   exceeds   the   arrangements   made   by   the <\/p>\n
    drawer,   with   adequate   safeguards   to   prevent   harassment   of <\/p>\n
    honest drawers.\n<\/p>\n
    11.         In  Vinod   Shivappa   V\/s.   Nanda   Beledappa,   AIR   2008 <\/p>\n
    S.C.2279,   it   is   observed   that   Section   138   of   the   Act   was <\/p>\n
    enacted to punish those unscrupulous persons who purported to <\/p>\n
    discharge   their   liability   by   issuing   cheques   without   really <\/p>\n
    intending to do so, which was demonstrated by the fact that <\/p>\n
    there was no sufficient balance in the account to discharge <\/p>\n
    the liability.   With a view to avoid unnecessary prosecution <\/p>\n
    of an honest drawer of a cheque, or to give an opportunity to <\/p>\n
    the   drawer   to   make   amends,   the   proviso   to   S.   138   provides <\/p>\n
    that after dishonour of the cheque, the payee or the holder <\/p>\n
    of the cheque in due course must give a written notice to the <\/p>\n
    drawer to make good the payment.   Cl. (c) of proviso to S.\n<\/p>\n
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                                        ( 11 )<\/p>\n
    138   provides   that   the   section   shall   not   apply   unless   the <\/p>\n
    drawer of the cheque fails to make the payment within 15 days <\/p>\n
    of the receipt of the said notice.   The proviso is meant to <\/p>\n
    protect   honest   drawers   whose   cheques   may   have   been <\/p>\n
    dishonoured   for   the   fault   of   others,   or   who   may   have <\/p>\n
    genuinely   wanted   to   fulfil   their   promise   but   on   account   of <\/p>\n
    inadvertence   or   negligence   failed   to   make   necessary <\/p>\n
    arrangements for the payment of the cheque.   The law treats <\/p>\n
    such   lapses   induced   by   inadvertence   or   negligence   to   be <\/p>\n
    pardonable, provided the drawer after notice makes amends and <\/p>\n
    pays the amount within the prescribed period.\n<\/p>\n
    12.         It   is   observed   in  Mosaraf   Hossain   Khan   V\/s.\n<\/p>\n
    Bhagheeratha Engg. Ltd., AIR 2006 SC 128 : (2006) 3 SCC 658 :\n<\/p>\n
    2006 Cr.L.J.1683  that the object of the provision of S. 138 <\/p>\n
    of   the   Negotiable   Instruments   Act   is   that   for   proper   and <\/p>\n
    smooth functioning of business transaction in particular, use <\/p>\n
    of   cheques   as   negotiable   instruments   would   primarily   depend <\/p>\n
    upon   the   integrity   and   honesty   of   the   parties.     It   was <\/p>\n
    noticed that cheques used to be issued as a device inter alia <\/p>\n
    for   defrauding   the   creditors   and   stalling   the   payments.\n<\/p>\n
    Dishonour   of   cheque   by   the   bank   causes   incalculable   loss, <\/p>\n
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\n                                         ( 12 )<\/p>\n
    injury   and   inconvenience   to   the   payee   and   the   entire <\/p>\n
    credibility   of   the   business   transactions   within   and   outside <\/p>\n
    the country suffers a serious set back.   Remedy available in <\/p>\n
    a   Civil   Court   is   a   long   drawn   process   and   an   unscrupulous <\/p>\n
    drawer   normally   takes   various   pleas   to   defeat   the   genuine <\/p>\n
    claim of the payee.\n<\/p>\n
    13.<\/p>\n
                In  Electronics   Trade   &   Technology   Development <\/p>\n
    Corpn.   Ltd.   V\/s.   Indian   Technologists   &   Engineers <\/p>\n
    (Electronics) (P) Ltd., (1996) 2 SCC 739  it is observed that <\/p>\n
    if   we   consider   the   provisions   of   Sections   138   to   147   and <\/p>\n
    their   object,   it   is  clear   that   object   of   section   138   is  to <\/p>\n
    inculcate   faith   in   the   efficacy   of   banking   operations   and <\/p>\n
    credibility   in   transacting   business   on   negotiable <\/p>\n
    instruments.     Despite   civil  remedy,  section  138  intended   to <\/p>\n
    prevent   dishonesty   on   the   part   of   drawer   of   negotiable <\/p>\n
    instrument   to   draw   cheque   without   sufficient   funds   in   his <\/p>\n
    account maintained by him in a bank and induce the payee or <\/p>\n
    holder in due course to act upon it.   Same view is taken in <\/p>\n
    the   case   of  Goa   Plast   (P)   Ltd.   V\/s.   Chico   Ursula   D’Souza <\/p>\n
    (2003) 3 SCC 232.\n<\/p>\n
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                                          ( 13 )<\/p>\n
    14.          Thus   the   object   of   the   amendment   and   introduction <\/p>\n
    of Chapter XVII in the Negotiable Instruments Act by Act of <\/p>\n
    1988 was mainly to encourage all major transactions including <\/p>\n
    commercial   or   business   transactions   through   cheques   and   to <\/p>\n
    enforce   credibility   and   acceptability   of   cheques   in <\/p>\n
    settlement of liability in general.  Encouragement of payment <\/p>\n
    by   cheques\/credit   cards\/debit   cards   rather   than   by   cash   is <\/p>\n
    necessary   for   healthy   economy.     That   also   brings   in <\/p>\n
    transparency   in   transactions   and   discourages   creation   of <\/p>\n
    black or unaccounted money through evasion of taxes or other <\/p>\n
    malpractices.   So, provisions like Section 138 of Negotiable <\/p>\n
    Instruments Act are salutary to give reliability, credibility <\/p>\n
    and   acceptability   of   negotiable   instruments   like   cheques   in <\/p>\n
    daily life.  However, the object was not to provide effective <\/p>\n
    and speedy remedy for recovery of loans.  Law makers must not <\/p>\n
    have intended or imagined that money lenders or banks would <\/p>\n
    obtain        blank       or       post           dated         cheques             while <\/p>\n
    sanctioning\/disbursing loans as securities and would use them <\/p>\n
    to   make   debtors\/borrowers   to   repay   loan   under   threat   of <\/p>\n
    prosecution   and   punishment   under   Section   138   of   the <\/p>\n
    Negotiable Instruments Act.  So, it is doubtful if provisions <\/p>\n
    of   Section   138   of   the   Negotiable   Instruments   Act   would   be <\/p>\n
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\n                                       ( 14 )<\/p>\n
    attracted to a case in which a blank or post dated cheque is <\/p>\n
    obtained   by   a   bank   or   money   lender   before   or   while <\/p>\n
    sanctioning   or   disbursing   loan   amount   as   security   for   the <\/p>\n
    loan.\n<\/p>\n
    15.        In   following   cases   bouncing   of   cheques   which   were <\/p>\n
    given as security for loan amounts were held not to attract <\/p>\n
    provisions   of   Section   138   of   the   Negotiable   Instruments <\/p>\n
    Act :-\n<\/p>\n
               1)    Anand   Urban   Co-operative   Credit   Society   V\/s.\n<\/p><\/blockquote>\n
                     Vipin Lalchand Mehta & Anr., 2008 (2) Bom.C.R.
\n                     (Cri.) 65 : 2008 ALL M.R. (Cri) 2266.\n<\/p><\/blockquote>\n
               2)    Goa Handicrafts, Rural & Small Scale Industries <\/p>\n
                     Development   Corporation   Ltd.,   V\/s.   Samudra
\n                     Ropes   Pvt.   Ltd.   &   Anr.,   2005   ALL   MR   (Cri) <\/p>\n
                     2643 : 2006 (1) Bom.C.R. (Cri) 157.\n<\/p><\/blockquote>\n
               3)    Hanumant R. Naik V\/s. Ajit Harmalkar, 2008 (1)
\n                     Bom.C.R. (Cri) 432 : 2008 ALL MR (Cri) 486.\n<\/p><\/blockquote>\n
               4)    M.S.   Narayana   Menon   Alias   Mani   V\/s.   State   of
\n                     Kerala and Anr., (2006) 6 S.C.C.39.\n<\/p><\/blockquote>\n
               5)    Karekar   Finance   Pvt.   Ltd.,   V\/s.   Shri   M.N.\n<\/p><\/blockquote>\n
                     Bashyam & Anr., 2007 ALL MR (Cri) 3073 : 2008 <\/p>\n
                     (3) B.C. 98.\n<\/p><\/blockquote>\n
               6)    Jayantilal   Parmar V\/s. Vaishali  Farne  (2007)
\n                     2 Bom.C.R. (Cri) 403.\n<\/p><\/blockquote>\n
               7)    Om Shri Finance & Investment  Corporation V\/s.\n<\/p><\/blockquote>\n
                     Mohemmed Sheikh (2007) 11 LJSOFT (URC) 24.\n<\/p><\/blockquote>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span><\/p>\n
                                         ( 15 )<\/p>\n<\/blockquote>\n
    16.         In  Anand   Urban   Co-operative   Credit   Society   V\/s.\n<\/p>\n
    Vipin   Mehta,   2008   (2)   Bom.C.R.   (Cri)   65,   trial   court   held <\/p>\n
    that   5   blank   cheques   were   obtained   towards   security   for <\/p>\n
    repayment   of   loan   as   in   this   case.     This   Court   refused   to <\/p>\n
    interfere with the order of acquittal.\n<\/p>\n
    17.         In Karekar Finance Pvt. Ltd. V\/s. Shri M.N. Bashyam <\/p>\n
    & Anr., 2007 ALL MR (Cri) 3073, it is held that though the <\/p>\n
    accused had taken loan from the complainant, he proved that <\/p>\n
    the   blank   cheque   was   issued   by   him   towards   collateral <\/p>\n
    security for loan and interest.   It is held that the cheque <\/p>\n
    cannot be said to be issued towards discharge of a debt and <\/p>\n
    same   would   not   come   under   purview   of   Section   138   of   the <\/p>\n
    Negotiable Instruments Act.\n<\/p>\n
    18.         Similarly,   in   the   case   of  Jayantilal   Parmar   V\/s.\n<\/p>\n
    Vaishali   Farne   (2007)   2   Bom.C.R.   (Cri)   403,   three   blank <\/p>\n
    cheques were given as security for loan amount.   Two cheques <\/p>\n
    were   encashed   and   third   was   bounced.     The   Single   Bench   of <\/p>\n
    this Court refused to interfere with the order of acquittal.\n<\/p>\n
    Facts   of   said   case   are   similar   to   the   facts  in   case  before <\/p>\n
    us.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span><\/p>\n
                                         ( 16 )<\/p>\n
    19.         The facts involved in  Om Shri Finance & Investment <\/p>\n
    Corporation V\/s. Mohemmed Sheikh (2007) 11   LJSOFT (URC) 24, <\/p>\n
    are also similar to facts of our case.  The Court declined to <\/p>\n
    interfere with the order of acquittal.\n<\/p>\n
    20.         The   Trial   Court   considered   that   though   cheque   was <\/p>\n
    issued   on   or   before   18.10.2000,     the   date   put   thereon   is <\/p>\n
    24.01.2008.  No doubt there is authority to put date so also <\/p>\n
    the   amount,   as   it   was   a   blank   cheque.       But   the   question <\/p>\n
    raised   is   whether   provisions   under   Section   138   of   the <\/p>\n
    Negotiable   Instruments   Act   should   be   made   applicable   to   a <\/p>\n
    blank cheque issued as security for loan after period of 7 to <\/p>\n
    8 years.\n<\/p>\n
    21.         In the present case blank cheques were issued prior <\/p>\n
    to   disbursement   of   loan   as   a   collateral   security   for   loan <\/p>\n
    which   was   sanctioned.     In   such   case   there   was   no   existing <\/p>\n
    debt   or   liability   when   the   cheque   is   issued.     So,   in   the <\/p>\n
    facts and circumstances of the case, the case does not fall <\/p>\n
    within   four  corners  of   offence   punishable   under  section  138 <\/p>\n
    of the Negotiable Instruments Act.  Of course such defence is <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span>
\n                                         ( 17 )<\/p>\n
    available against payee and not holder in due course.\n<\/p>\n
    22.         In   this   case,   we   cannot   say   that   debt   was   time <\/p>\n
    barred   on   the   date   appearing   on   cheque   i.e.   24.01.2008   in <\/p>\n
    view   of   various   payments   allegedly   made   by   the   respondent <\/p>\n
    which   renewed   period   of   limitation   under   Section   19   of   the <\/p>\n
    Limitation   Act   from  time   to  time.     To   that   extent   I  differ <\/p>\n
    from the Trial Court.\n<\/p>\n
    23.         Lastly   the   Trial   Court   has   observed   that   the <\/p>\n
    respondent-accused   in   his   evidence   on   record   has   produced <\/p>\n
    receipts issued by the complainant bank at Exh. 61 to 75.  It <\/p>\n
    is case of the respondent\/accused that he had repaid entire <\/p>\n
    loan in the year 2005.   In para 17 it is observed that the <\/p>\n
    account   extract   produced   by   complainant   bank   at   Exh.25   was <\/p>\n
    produced up to 12.12.2003. Inspite of sufficient opportunity, <\/p>\n
    the accounts extract of subsequent period up to the date of <\/p>\n
    cheque   (which   was   24.01.2008)   was   not   produced.     Obviously <\/p>\n
    the   payment   made   after   12.12.2003   did   not   appear   in   the <\/p>\n
    account extract produced.   In these circumstances, the Court <\/p>\n
    held that it is not proved that on the date appearing on the <\/p>\n
    cheque   or   the   the   date   on   which   the   cheque   was   presented, <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span>
\n                                         ( 18 )<\/p>\n
    amount of Rs. 87,200\/- was outstanding.   There was omission <\/p>\n
    to prove said fact inspite of record being available with the <\/p>\n
    complainant and therefore adverse inference was drawn.  It is <\/p>\n
    held that it is not proved that on the date of cheque amount <\/p>\n
    of   Rs.   87,209\/-  was  outstanding  and  therefore   provisions   of <\/p>\n
    section   138   of   the   Negotiable   Instruments   Act   are   not <\/p>\n
    attracted.     We   cannot   find   fault   with   this   ground   for <\/p>\n
    acquittal.\n<\/p>\n
    24.         Here I may rely on Pawan Enterprises V\/s. Satish H.\n<\/p>\n
    Verma, 2003 Bom.C.R. (Cri). 474,  In that case a colour T.V.\n<\/p>\n
    was   purchased   on   4th  April,   1998   by   the   respondent   from   the <\/p>\n
    applicant   for   total   consideration   of   Rs.   22,760\/-.     Rs.\n<\/p>\n
    5000\/-   were   paid   in   cash   and   post   dated   cheque   of   Rs.\n<\/p>\n
    17,745\/-   was   issued   on   08.01.1998.     The   respondent   was <\/p>\n
    supposed   to   pay   balance   amount   in   installment   or   in <\/p>\n
    accordance   with   post   dated   cheque.     When   the   cheque   was <\/p>\n
    presented on 19.01.1998 what was due was only Rs. 10,975\/-, <\/p>\n
    though on 08.01.1998, the date of issuing post dated cheque <\/p>\n
    for Rs. 17,745\/- was due.  It was held that the cheque issued <\/p>\n
    was   for   much   higher   amount   than   was   actually   due   and <\/p>\n
    therefore   it   cannot   be   said   that   the   cheque   was   issued <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span>
\n                                        ( 19 )<\/p>\n
    towards debt or other liability within the meaning of Section <\/p>\n
    139,   and   offence   under   section   138   of   the   Negotiable <\/p>\n
    Instruments   Act   is   not   committed.     In   said   case   the   Court <\/p>\n
    distinguished between ‘liability’ and ‘security’ and observed <\/p>\n
    that both cannot be mixed or acted upon simultaneously.   In <\/p>\n
    para   6   it   is   observed   that   if   the   act   of   a   person   in <\/p>\n
    discharge   of   liability   is   not   done,   then   security   comes   in <\/p>\n
    picture   and   if   the   act   in   discharge   of   a   liability   is <\/p>\n
    performed then security would not have any legal force.\n<\/p>\n
    25.         After having considered all aspects, in my opinion, <\/p>\n
    this is not a case where leave to file appeal against order <\/p>\n
    of acquittal can be granted.  Hence, the Criminal Application <\/p>\n
    is dismissed.\n<\/p>\n
                                                    [P.R. BORKAR,J.]<\/p>\n
    snk\/2010\/FEB10\/cra898.09<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:37:25 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ramkrishna Urban Co-Operative … vs Shri Rajendra Bhagchand Warma on 16 February, 2010 Bench: P. R. Borkar (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 898 OF 2009 Ramkrishna Urban Co-operative Credit .. Applicant Society Ltd., Maliwada, Ahmednagar, through Authorised Signatory, Shri Chhagan Tukaram Raut, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-130697","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRamkrishna Urban Co-Operative ... vs Shri Rajendra Bhagchand Warma on 16 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramkrishna-urban-co-operative-vs-shri-rajendra-bhagchand-warma-on-16-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramkrishna Urban Co-Operative ... vs Shri Rajendra Bhagchand Warma on 16 February, 2010 - 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