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Iqbal s/o Gulamnabi Sheikh Versus Madhukar s/o Gyaniram Sakhare

2017 (10) TMI 458 - BOMBAY HIGH COURT

Acquittal of accused under Section 138 of the Negotiable Instruments Act - Held that:- It cannot be said that the accused issued the cheques (Exh.14 to Exh.17) on the given dates to the complainant towards discharge of debt or liability on him. It is, therefore, clear that those cheques were not issued by the accused, in accordance with the provisions under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act. - In the instant case, the cheques were is .....

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ndent JUDGMENT This appeal has been directed against the judgment dated 8.5.2006 delivered by the learned Judicial Magistrate First Class, Sakoli in Criminal Case No. 1796/2005, whereby learned trial Judge acquitted the accused under Section 138 of the Negotiable Instruments Act. 2] Heard Smt. Priya Zoting, Advocate (Appointed) for the appellant and Mr. S. N. Nandeshwar, for the accused. 3] The case of the Iqbqal Gulamnabi Sheikh (PW1) is as under :The complainant and the accused were acquainted .....

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respectively. Accordingly, the complainant then handed over the amount of ₹ 5,000/to the accused. It is the case of the complainant that again the complainant handed over the amount of ₹ 55,000/to the accused. Thus, the complainant gave total amount of ₹ 85,000/to the complainant. 4] On 19.2.2005, the accused asked the complainant to present the said cheques in the bank for encashment. Accordingly, the complainant presented those cheques in Dena Bank, Deori Branch. However, th .....

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o the charge levelled against him and claimed to be tried. 6] The learned trial Judge on analysis of the evidence and after hearing both sides, acquitted the accused as aforesaid. 7] In order to prove his case, the complainant has examined himself and one witness who was Joint Accountant in the Bank. The complainant has deposed before the Court as per the contents in the complaint. The complainant has categorically stated that the accused had issued cheques (Exh.14 to Exh.17) dated 1.9.2004, 1.1 .....

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hat during the crossexamination the complainant has explicitly admitted that the cheques in the instant case were given to him towards guarantee and security. The complainant denied that he was given blank cheques. He further admitted that he is indulged in the business of money lending and his licence of money lending business was issued after the cheques were given by the accused to him. Thus, from the testimony of the complainant makes amply clear that the accused had given him cheques toward .....

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nt funds in the account of the accused. He produced the copy of the statement of account (Exh.36). No doubt, the testimony of PW2 indicates that the cheques tendered by the complainant and issued by the accused were bounced. 10] It is the specific case of the accused as seen from his evidence that the complainant had lent him amount of ₹ 10,000/on interest and had taken from him six blank cheques towards security. According to the accused, the complainant withdrew the amount of ₹ 10, .....

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has contended that on 16.6.2004 the accused demanded amount of ₹ 5,000/from him, at that time the complainant was not willing to give him ₹ 5,000/. However, the accused gave him cheques of ₹ 2,000/each on 1.7.2004, 1.8.2004, 1.9.2004, 1.10.2004, 1.11.2004 1.12.2004 and also cheques of ₹ 5,000/each dated 1.1.2005 and 1.2.2005. Considering the credibility, the complainant gave the amount of ₹ 5,000/to the accused on 16.6.2004. The said fact makes amply clear that the .....

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discharge of debt or liability on him. It is, therefore, clear that those cheques were not issued by the accused, in accordance with the provisions under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act reads as under: 138 ….. Dishonour of cheque for insufficiency, etc., of funds in the account.Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that ac .....

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ay be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a noti .....

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