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Judgment
Challenge is to the judgment and order dated
23.03.2015 passed in Summary Criminal Case 130/2009 by the
Judaical Magistrate First Class, Tumsar, by and under which, the
respondent 1 is acquitted of offence punishable section 138 of the
Negotiable Instruments Act, 1881 ("Act" for short).
Heard Shri Mahesh Rai, the learned Counsel for the
appellant and Shri K.S. Motwani, the learned Counsel for the
respondent 1.
The judgment and order of acquittal is predicated,
inter alia, on an assumption that the carbon copy of form 8
maintained under the provisions of the Maharashtra Money
Lenders Act is not signed by the accused. Perusal of Exh.66 would
reveal that there is a signature purportedly of the accused.
Defence witness 2 Shri Pramod Meher who is examined by the
accused has identified the signature of the accused on Exh.66.
However, while recording a finding that form 8 is not signed by
the accused the learned Magistrate was not alive to the purported
signature of the accused and to the evidence of D.W.2.
One of the findings recorded by the learned
Magistrate is that the statutory notice is not served. The envelope
sent by registered post was returned with the endorsement "not
claimed". According to the learned Magistrate, the said
endorsement cannot be equated with refusal. I need not deal with
the said aspect in greater detail since I propose to remit the
proceedings to the learned Magistrate and any observation made
by this Court ought not to directly or indirectly influence the trial
court. Suffice it to say, that whether the said endorsement would
give rise to presumption of service, will have to be decided by the
learned Magistrate on the anvil of law enunciated by the Apex
Court in the decisions which have been rendered subsequent to
the decision of this court on which reliance is placed.
The accused did not dispute his signature on Exh.48
which is the disputed cheque. The defence is, that the accused
borrowed Rs.20,000/- from the complainant in January, 2005 and
three cheques duly signed but with the other contents blank were
given to the complainant as security. The defence is that although
the loan borrowed is repaid in its entirety, the cheque which were
given as security were not returned, and one such cheque is
misused in the year 2008.
Concededly, the complainant is a money lender who
claims to hold the statutory licence. It would be appropriate, if the
learned Magistrate decides every issue arising in the proceeding
afresh, if need be by permitting the parties to adduce further
and/or additional evidence. The learned Magistrate will have to
evaluate the documentary evidence on record and the effect of the
alleged non-compliance with the provisions of the Money Lenders
Act. The learned Magistrate would have to evaluate the defence
evidence and to decide whether the statutory presumption under
section 139 of the Act stands reubtted.
In the light of the discussion supra, the judgment and
order dated 23.03.2015 is set aside.
The learned Magistrate would be required to decide
the every issue arising afresh, if necessary by permitting the
parties to adduce further and/or additional evidence. The learned
Magistrate is requested to finally decide the complaint within six
months from the receipt of the record and proceedings.
The parties are directed to appear before the learned Judicial
Magistrate First Class, Tumsar on 03.02.2018 and to abide by
further directions.
The registry to ensure that the record and proceedings
is sent back to the trial court expeditiously.
The appeal is partly allowed.