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
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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.
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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
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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
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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
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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.
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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.
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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
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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.]
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