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TMI Blog2019 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... and represented that he was in need of money for his business. Accordingly, the accused requested the complainant to give him the hand loan of Rs. 30,00,000/ (in words Rs. Thirty Lakhs only) for the purpose of his various businesses. The accused assured the complainant that the said amount will be refunded when money will be available with him. Having a cordial relationship with the Accused, the complainant relying upon the said assurance of the Accused paid him an amount of Rs. 30,00,000/ in cash. Since the hand loan was given looking to the cordial relationship between the parties the said loan was interest free hand loan. 3. It was alleged that, in pursuance of the acccused's liability and / or legal dues payable to complainant, accused had issued and delivered to the complainant a cheque bearing No. 137572 dated 15.12.2017 drawn on Business Bank, Ltd., Mahatma Nagar, Nashik for a sum of Rs. 30,00,000/ with an assurance to honour the said cheque immediately upon the presentation thereof. 4. It was alleged that, the aforesaid cheque was deposited by the complainant for encashment in his bank namely Shree Mahesh Cooperative Bank Ltd., M.G. Road, Nashik Branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant has set out date wise incidences as follows: SYNOPSIS Sr No. Particulars Cheque No. 137572 1. Date of issue of cheque 15.12.2017 2. Date of presentation 08.01.2018 3. Date of dishonour 09.01.2018 4. Date of communication 09.01.2018 5. Date of issue of Notice u/s. 138 of the NI Act. 19.01.2018 6. Date of return of the said notice sent at business address 06.02.2018 7. Date of return of the said notice sent at residential address 15.02.2018 In view of the aforesaid it is contended by the complainant that the cheque is very well presented within limitation by the complainant into the bank for the purpose of encashment, as well as Notice under Section 138 of the said Act was also issued within time to the accused. 8. It was alleged that, the cause of action for the complaint arose on the dates mentioned hereinabove. Thus the complainant has issued notice under Section 138 within the prescribed period of limitation and after the said notice was returned to the complainant, the complaint is filed within time. Hence the complaint is filed within the prescribed time limit after the return of the notice sent on 15.02.2018 on the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out considering the facts of the case. There is no legal enforceable liability, hence the complaint of the first Respondent is not maintainable. The offence under Section 138 of the said Act is not made out hence the order of issuance of process against the applicant cannot legally sustain. Learned counsel appearing for the applicant in support of aforesaid contention relied upon the unreported judgments of the Hon'ble Apex Court in the case of Himanshu Vs. B. Shivamurthy and Anr Criminal Appeal No. 1465 of 2009. also in the case of A.C. Narayanan Vs. The State of Maharashtra and Ors CDJ 2017 BHC 1470. 14. On the other hand, learned counsel appearing for the first Respondent invites attention of this Court to the affidavit in reply filed on behalf of the first Respondent. Learned counsel appearing for the first Respondent, at the outset, denied all the allegations made in the application. It is submitted that, the applicant has circumvent the remedy of Revision available to him before approaching the High Court. The applicant can file the Revision challenging the impugned order however, applicant has directly invoked an inherent jurisdiction of this Court under Section 482 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what steps applicant took in pursuance of the alleged case of cheating, which admittedly the applicant was put to notice way back in January 2018 when the cheque was dishonoured. It would not be out of context to state that, the mere fact that the applicant alleges cheating but has not taken any steps even after a lapse of a period of more than a year and half from the date from which the applicant alleges cheating, explains as to the fallaciousness alleged by the applicant only to shy away from making such payments. The conduct of the applicant speaks volume as to the falsity and infirmity in the submissions made by the applicant. In support of the aforesaid contentions learned counsel placed reliance on the judgments in the case of Purushottam s/o Maniklal Gandhi Vs. Manohar K. Deshmukh and anr 2007 (1) Mh.L.J. 210, Darshan Singh Vs. State 2001 STPL (DC) 190 CAL & Prabhu Chawla Vs. State of Rajasthan and Anr Criminal Appeal No. 842 of 2016 (SLP (Crl.) No. 3314 of 2009). 16. Heard the counsels appearing for the parties at length and with their able assistance perused the pleadings in the petition, grounds taken therein and annexures thereto. The first point raised by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record, whether the applicant had knowledge of accessing email, and as a matter of fact, whether he received the email sent by the applicant on 27th January 2018. 17. Another contention of the counsel for the applicant that, the first Respondent has not replied or produced on record single documents to show when and where the alleged transaction between the applicant and first respondent had taken place and which documents were executed with regard to said transaction, and what is the source of income of the first Respondent to pay such huge loan amount to the applicant. In this respect it is only during trial the Trial Court will be able to appreciate the aforesaid contentions. 18. An another contention of the applicant that the statement of bank account of the applicant will show that the said cheque was part of the cheque book issued on 09th December 2011 to the applicant, and there was change in the format of the cheque and now the applicant has been issued new cheque book by the Bank and, therefore the Respondent has misused old cheque given by the applicant many years ago and has cheated the applicant is concerned, it is for the trial Court to consider the above c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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