Narhari Vithalrao Dahe Vs. Sudam Gangaram Dahe (Neutral Citation: 2024:BHC-AUG:4109) - (High Court of Bombay) (27 Feb 2024)

Once doubt regarding loan transaction creeps in, benefit goes to accused

MANU/MH/1205/2024

Banking

In present matter, case 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 Negotiable Instrument Act, 1881 were instituted.

Appellant submitted that, learned trial court 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.

It is imperative for complainant to establish his own case so as to invoke initial presumption as available under Sections 118 and 139 of NI Act. Law is fairly settled that, once accused is shown to have received legal demand notice, then defence is expected to offer explanation and rebut the presumption available under law.

When very essentials for attracting charge under Section 138 of NI Act are missing and once doubt regarding loan transaction creeps in, benefit goes to accused. Resultantly, it cannot be said that learned trial court has adopted hyper technical view. Proceedings like NI Act are distinct than other proceedings. All essential ingredients are required to be met for proving the complaint. Here, it has not so happened. Essence of proving very transaction is patently missing.

Though there is cheque under signature of accused, it is substantiated and demonstrated that it was towards loan transaction between Dnyanoba and Kuber Finance. Apart from documents at Exh.39 to 43, particulars and agreement of loan are also placed on record. DW1 is an independent witness. There is no reason for him to take side of accused. Complainant having failed to establish very transaction of loan by adducing cogent and reliable evidence, no fault can be found in the judgment and order of trial court. No legally enforceable debt is proved at the end of accused. Therefore, there is no merit in the appeal. Appeal dismissed.

Tags : CHEQUEBOUNCE ACQUITTAL LEGALITY