TMI Blog2011 (11) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Bank of Maharashtra, MIDC Branch, Barshi Road, Latur. The complainant intended to install furniture in his shop and asked the accused to prepare furniture. Accused also expressed his willingness to prepare the furniture for the complainant. Accordingly, the complainant entrusted the work of preparing furniture for his shop to accused. In pursuance of the said contract, accused asked the complainant to advance amount of Rs. 35,000/-and it was agreed between them that furniture work would be completed at about Diwali 1996. Accordingly, relying upon the promise of the accused, complainant advanced him cash of Rs. 35,000/-however, accused did not commence with the work of furniture. Accused also repeatedly promised to commence with the work but did not start the same. Ultimately the complainant found that accused is not interested in preparing furniture for his shop. Hence, he requested accused to repay the amount of Rs. 35,000/-to him. However, accused avoided for the same but ultimately on 7.11.1997, the accused issued cheque for Rs. 35,000/-dated 25.11.1997 to the complainant towards the repayment of the said amount. The complainant presented said cheque for encashment purpose, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the parties. AT the outset, the complainant adduced oral evidence by examining himself as CW 1 and also examined other two witnesses namely Arvind Jondhale as CW 2 Bank Officer and Dilip Garje i.e. witness to the transaction as CW 3 as well as produced documentary evidence and cheque in question for Rs. 35,000/-drawn on Bank of Baroda dated 25.11.1997 cheque no.657988 is produced at Exh.18, bank return memo at Exh.19 dated 25.11.1997 bearing endorsement 'account closed' Exh.19, copy of statutory notice dated 26.11.1997 sent by complainant to the accused at Exh.20, registration receipt thereof at Exh.21, registered postal acknowledgment thereof at Exh.22, copy of the notice dated 14.11.1997 sent by advocate for the accused to the complainant and witness Dilip Garje Exh.24 and copy of the reply dated 26.11.1997 and copy of reply notice dated 26.11.1997 sent by Advocate for the accused to the complainant's advocate dated 2.12.1997 Exh.23. 8. Keeping in mind the aforesaid documentary evidence adduced/produced by the parties and coming to the oral evidence adduced by the complainant, wherein complainant namely Vitthal Gorakh Shinde examined himself an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that accused gave him notice dated 14.11.1997. He further stated that cheque No. 725350 dated 23.3.1997 was issued towards earlier transaction. It was also suggested to him that out of the amount of Rs. 20,000/-accused is liable to pay Rs. 2,000/-but same was denied by him. Suggestion also was given to him that accused had come to pay Rs. 2,000/-but since the complainant refused to acknowledge the same in writing hence, he returned back. It was also suggested that, the complainant demanded Rs. 42,000/-to the accused including the interest, but same was denied by him. It was further suggested to him that the complainant used blank cheques and put amount of Rs. 35,000/-on one cheque and amount of Rs. 7,000/-on another cheque and presented the same. It was further suggested to him that complainant filed false case against accused to extract more money from him, but same was denied by him. 10. Accordingly, complainant stated in his deposition that he gave amount of Rs. 35,000/-to the accused in his shop. Thereafter, accused gave cheque of Rs. 35,000/-to the complainant in his shop, since he was unable to prepare furniture within the prescribed period and said cheque was signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as denied by him. 13. Accordingly, accused put up his case categorically to the said witness in the cross examination in respect of obtaining two blank cheques from him and misuse thereof but same was denied by the said witness. 14. That takes me to the deposition of CW 3 Arvind Jondhale i.e. the Bank Officer, wherein he stated that 'New Suvarna Wood Furniture 'has account in the bank and Sangram i.e. accused is operating said account as its proprietor. He further stated that cheque no.657988 has been sent to his bank through Latur District Central Co-operative Bank. The account was closed on 25.11.1997 and cheque was dis-honored and accordingly, cheque was returned to L.D.C.C. Bank along with memo Exh.19. He further stated that as per record of xerox copies which was brought by him, the cheque Exh.18 does not bear signature of accused i.e. Sangram Panchal. He also brought with him certified account extract of accused. He further stated that cheque Exh.18 has not been sent through any bank, but it was presented on the bank counter. He further stated that memo Exh.19 was given at the counter and not to the Bank. Cheque was returned as account was closed. During the cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the accused countered the said argument and submitted that although, initial presumption under section 118(a) and 139 of N.I.Act has been raised in favour of the complainant, said presumption is rebuttable under section 139 of N.I.Act. In the said context, learned counsel for the accused pointed out that the accused has put forth the specific defence that he had obtained some loan from the complainant which has repaid to the complainant and blank cheques were obtained by the complainant from accused at the time of said loan and complainant had misused the said blank cheques and filed false case against the accused. Learned counsel asserted that the accused has put forth his case to the complainant and his witnesses through their respective cross examinations. 18. Moreover, the accused has categorically stated in his statement recorded under section 313 of Cr.p.C. that he had paid Rs. 16,000/-to complainant and blank cheque was given to the complainant. He has demanded more amount. Learned counsel also invited my attention towards the notice dated 14.11.1997 issued by the accused to the complainant and his witness Garje, which reflects that at the request of accused, amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the cheque in question Exh.18 and bank return memo and statutory demand notice dated 26.11.1997 sent by the complainant to the accused and registration thereof, initial presumption has been raised in favour of the complainant under section 118(a) and 139 of N.I.Act that the accused issued cheque in question to the complainant towards discharge of debt/liability, partly or in whole. Hence, it was incumbent upon the accused to discharge said presumption which is reversible under section 139 of N.I.Act and test required therefore is on preponderance of probability. 21. In the said context, the accused has raised defence that he had obtained some loan from the complainant which he had repaid to him but blank cheques were obtained from the accused at that time and complainant mis-used said cheques and filed false case against the accused. In the light of the said defence, the accused sent notice to the complainant and witness Garje on 14.11.1997 and categorically put forth his case therein. In fact, said notice was issued by the accused to the complainant prior to the date of cheque since date of the cheque is 25.11.1997 and prior dishonor thereof and date of the notice is 14.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and final payment which appears to have been denied by them and accused still was ready and willing to pay amount of Rs. 2,000/-to the complainant and witness Garje as stated in the notice dated 14.11.1997. Besides, witness Garje is appears to be friend of complainant, which has been admitted by him in his testimony and pertinently, notice dated 14.11.1997 issued by accused to both of them i.e. complainant and witness Garje, possibility of deposing CW 3 Garje in favour of complainant to help him cannot be ruled out. 24. Apart from that, the complainant has not produced any cogent evidence to prove and establish that he handed over the amount of Rs. 35,000/-to the accused and no writing has been produced by the complainant in that respect and testimony of alleged witness Garje is under doldrums as mentioned herein above. 25. Hence, it is apparently clear that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused on the date of issuance of cheque in question, and further complainant failed to prove and establish beyond reasonable doubt that accused issued cheque in question to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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