SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Monica Sachwani vs Charushila D. Nanaware And Anr on 7 January, 2020

alp-215-2015.odt

Shailaja

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO.215 OF 2015

Monica Sachwani ]
Age: 58 years, Occupation: Advocate ]
Address: P.W.D, 30/01, ]
Pimpari Camp, Pimpri, Pune – 411 017. ] Applicant
Vs.
1. Charushila D. Nanaware ]
Age – 44 years, Occ. Service, ]
Address: Sahil Residency, B Wing, ]
Flat No.9, Moshi Pradhikaran, ]
Pune – 411 018. ]

2. The State of Maharashtra ] Respondents
…..
Ms. Monica Sachwani, Applicant in person.
Mr. Abhaykumar Apte, for Respondent No.1.
Mr. A.A. Palkar, for Respondent No.2-State.
…..
CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON: 3RD JANUARY, 2020.

PRONOUNCED ON: 7th JANUARY, 2020.

P.C:

By this application, the applicant has prayed for

special leave to appeal against the impugned judgment and order of

1 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

acquittal dated 20th February, 2015 passed by the Judicial

Magistrate First-Class, Pimpari, Pune in S.C.C No.362 of 2010 by

which respondent No.1 came to be acquitted of the offence

punishable under section 138 of the Negotiable Instruments Act,

1881 (for short ‘N.I. Act’).

2. A few facts germane from the decision of this

application can be summarized thus:

The applicant is a practicing Advocate at Pimpari

Court, Pune. The respondent No.1 is a teacher (now retired). On

3rd June, 2009, the respondent No.1 approached the applicant for

availing her legal services and to represent her in the office of

Maharashtra Housing Area Development Authority (for short

‘MHADA’), Pune and also for claiming her share in the Fixed

Deposit at Kharalwdi, Post Office Pimpari, Pune and other rights

of the respondent No.1 in some movable and immovable property,

the documents of which are in possession of the husband of the

respondent No.1. After due consultation, professional fees and

other expenses were agreed to be paid to her to the tune of

Rs.5,00,000/- (Rs. Five Lakhs only). The said fees were to be

payable after due compliance of all the work assigned to the

applicant by the respondent No.1.

2 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

3. Since the respondent No.1 did not possess sufficient

amount towards fees, she had paid a token amount of Rs.450/- (Rs.

Four Hundred Fifty only) to the applicant, pursuant to which, the

applicant issued her a receipt. A Vakalatnama came to be executed

which was signed by the respondent No.1 and her daughter. The

respondent No.1, inter alia, claimed her share in a house property

from her husband. A promissory note came to be executed by the

respondent No.1 on 16th September, 2009 along with two post-

dated cheques bearing No.993761 and 993762 in the sum of Rs.

2,50,000/- each of the Seva Vikas Co-operative Bank Ltd., Nehru

Nagar Branch, Pimpari. It was agreed upon that the applicant

would deposit the subject cheques in the month of December only

after the respondent No.1 receives her dues of 6th Pay Commission.

4. However, when the cheques were deposited on 30th

December, 2019, those were dishonoured with a remark of the

Bank “Referred to Drawer”.

5. Admittedly, a statutory notice dated 8th January, 2010

was duly served upon the respondent No.1 within limitation and

due to its non compliance, the applicant filed a complaint in the

Court of Judicial Magistrate First-Class, Pimpari against the

3 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

respondent No.1 under section 138 of the N.I Act. After recording

the evidence of the complainant and after going through the

documents on record, the learned J.M.F.C, by the impugned order,

acquitted the respondent No.1 of the offence punishable under

section 138 of the N.I Act.

6. I heard Ms. Monica Sachwani, the applicant in person

who is also a practicing Advocate and Mr. Apte, learned Counsel

for the respondent No.1. I have also meticulously perused the

evidence and the impugned judgment.

7. Indubitably, services of the applicant were solicited by

the respondent No.1 and her daughter, meaning thereby, they had

engaged the applicant as their Advocate to act, plead and to defend

the cases qua movable and immovable properties which is evident

from the Vakalatnama Exhibit 28. Undisputedly, the Vakalatnama

was signed by the respondent No.1 as well as her daughter Nandini

Nilesh Pawar and also by the applicant. Prima facie, there was a

privity of contract between the applicant and the respondent No.1.

The contention of the respondent No.1 that her signature was

obtained fraudulently does not appeal to one’s mind for the simple

reason that the respondent No.1 is a teacher and not an illiterate

4 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

person, who not only signed the Vakalatnama alongwith her

daughter but also issued two cheques in favour of the applicant.

8. Exhibit 59, the counterfoil of the receipt appears to

have been issued by the applicant to the respondent No.1 in lieu of

acceptance of Rs.450/- as a token towards her professional fees.

The receipt further indicates that an amount of Rs.5,00,000/- was

balance and due towards the respondent No.1. This receipt is

dated 3rd June, 2009. The cheques in question are dated 30 th

December, 2009.

9. Exhibit 29 is a very important documentary evidence

which appears to be a letter-cum-undertaking given by the

respondent No.1 to the applicant in Marathi language. The recitals

of the said letter reveal that the respondent No.1 had contributed

her share while purchasing an immovable property bearing

No.105/14, Saint Tukaram Nagar, Pimpri, Pune. The said property

was purchased in the name of her husband. The relevant

documents qua the said property were in possession of her

husband. Apart from the immovable property, there is a fixed

deposit of Rs.12,40,000/- (Rs. Twelve Lakh Forty Thousand only)

in the Kharalwadi Post Office, Pimpari, Pune. The respondent No.1

5 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

had contributed in the said amount also which is in her husband’s

name and so also the relevant papers.

10. Since the respondent No.1 was driven out of the house

by her husband who was intending to grab all the movable and

immovable properties, despite respondent No.1 having her legal

share, the respondent No.1 requested the applicant to help getting

her legal share and, therefore, she issued the said cheques in the

sum of Rs.2,50,000/- each. The respondent No.1, inter alia,

requested the applicant to put a date in the month of December,

2009 so that the cheques would be honoured by that time.

11. This vital piece of documentary evidence could not be

disproved by the respondent No.1 and, therefore, there is hardly

any reason to say that the initial presumption in favour of the

holder of the cheque under section 183 of the N.I Act has been

rebutted. Exhibit 29 substantiates the contention of the applicant

that there was an agreement between the parties by which the

applicant was supposed to assist and help the respondent No.1 in

getting her legal rights adjudicated upon before the different Courts

and Authorities.

6 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

12. A statutory notice which is proved at Exhibit 27

issued by the applicant to the respondent No.1 further corroborates

Exhibit 29. In her statement under section 313 of the Criminal

Procedure Code, the respondent No.1 admits issuance of subject

cheques in the sum of Rs.2,50,000/- in favour of the applicant.

Interestingly, it is the defence of the respondent No.1 that the

applicant had fraudulently obtained the subject cheques and a

blank stamp paper under the pretext of filing those documents in

the Court of Civil Judge, Senior Division where husband of the

respondent No.1 had filed a Marriage Petition under section 13 (1)

(ia) (ib) of the Hindu Marriage Act, 1956 seeking divorce from the

respondent No.1. However, in the light of the fact that the

respondent No.1 is a well qualified teacher, it sounds incredible

that she would part with cheques of such a huge amount, that too,

in a Divorce Petition.

13. Question No.16 of the statement under section 313 of

Cr.P.C indicates that there was no sufficient amount in her account

when the respondent No.1 asked the Bank to “stop payment”.

Surprisingly, the answer is I don’t know. It speaks volumes.

7 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

14. It was asked as to why the applicant had testified

against her, the respondent No.1 answered that she does not know.

The fact that there was no sufficient amount in her account when

the cheques were presented has also been substantiated by the

applicant’s witness No.2-Nilesh S. Mokashi, who works in The

Seva Vikas Co-operative Bank Ltd., Nehru Nagar Branch, Pune as

an Accountant. He admits that when the subject cheques were

received in the Bank on 16th December, 2019, there was no

sufficient amount in the account of the respondent No.1 to honour

the same. To substantiate the said fact, witness Nilesh S. Mokashi

tendered the statement of the Bank which is proved at Exhibit 72.

Undisputedly, by letter dated 7th August, 2009-Exhibit 74, the

applicant had asked Manager of the Seva Vikas Co-operative Bank

Ltd. to stop payment in respect of two subject cheques as she had

been allegedly deceived and cheated by the applicant.

15. Learned Counsel for the respondent No.1 drew my

attention to Exhibit 32 which appears to be a statement of the

respondent No.1. It is unclear whether it is on oath and was given

before any adjudicating authority. It appears to have been given

before MHADA Authorities. It reveals that the matrimonial dispute

between the respondent No.1 and her husband has been

8 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::
alp-215-2015.odt

compromised and settled and, therefore, the MHADA Authority

should not act on any of the applications, objections etc furnished

before the said Authority on behalf of the applicant. This statement

which appears to be dated 8th September, 2009, in strict sense,

cannot be said to be sufficient to rebut the presumption.

16. The learned J.M.F.C in the impugned judgment failed

to appreciate the evidence in its correct perspective.

17. For the aforesaid reasons, special leave needs to be

granted to prefer an appeal against the impugned judgment and

order of acquittal. Consequently, the application is allowed.

18. The learned J.M.F.C, Pimpari, Pune shall take steps

under section 390 of the Cr.P.C. Upon appearance of respondent

No.1, she shall be enlarged on bail on executing a P.R. bond in the

sum of Rs.20,000/- with one or two sureties to the satisfaction of

the learned J.M.F.C.

19. Let the appeal be registered and thereafter be placed

for admission.

[PRITHVIRAJ K. CHAVAN, J.]

9 of 9

::: Uploaded on – 08/01/2020 09/01/2020 01:05:13 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation