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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 670 OF 2008
Kashinath Narayanrao Bodkhe,
Aged about 57 years,
Occupation - Labour,
R/o Anjangaon Surji, District
Amravati. .... APPELLANT
VERSUS
Vinod Ramdas Nemale,
Aged about 35 years,
Occupation - Labour,
R/o Anjangaon Surji, District-
Amravati. .... RESPONDENT
______________________________________________________________
Shri S.S. Shingne, Advocate for the appellant,
Shri P.V. Thakre, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 07-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 04-12-2017
JUDGMENT :
The appellant, who is the original complainant, is assailing the judgment and order dated 01-7-2008 in Criminal Appeal 20/2006 delivered by the learned Ad hoc Additional Sessions Judge, Achalpur, ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:54:35 ::: 2 apeal670.08 by and under which the judgment and order dated 06-6-2006 in Criminal Case 390/2005 passed by the learned Judicial Magistrate First Class, Anjangaon Surji is reversed and the respondent (original accused) is acquitted of offence punishable under Section 138 of the Negotiable Instrument Act, 1881 ("Act" for short).
2. The gist of the complaint under Section 138 of the Act, is that the accused was in need of Rs.95,000/-. The complainant who was a friend of the accused, extended a hand loan in cash to the accused on 07-4-2005, towards repayment of the said hand loan, the accused on the same day i.e. 07-4-2005 handed over cheque 895266 to the complainant, which was presented for encashment on 13-4-2005. The cheque was dishonoured, the statutory notice was not complied with, although the accused did reply, and the complainant was constrained to institute the complaint under Section 138 of the Act.
3. The learned Magistrate was pleased to convict the accused inter alia recording a finding that the accused did not rebut the statutory presumptions under Sections 118 and 139 of the Act. The appellate Court has, however, held that the statutory presumptions are amply rebutted.
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4. I have scrutinized the evidence on record closely, since the judgment of conviction is reversed by the appellate Court holding that the statutory presumptions stand rebutted.
5. The complainant has admitted in his cross-examination that on 02-4-2005 there was an altercation between his son and the accused and the bone of contention was an amount of Rs.95,000/-. The complainant further admits that the altercation was in the presence of Suresh Yeul and Ramnath Aswar. The accused has brought on record that pursuant to the said altercation a report was lodged at the police station against the son of the complainant which was treated as non-cognizable.
6. The extension of hand loan in cash which the complainant says was extended to the accused on 07-4-2005, is an unbelievable version. The learned appellate Court has rightly held that on the backdrop of the admitted altercation between the son of the complainant and the accused on 02-4-2005, it is not probable that five days thereafter the complainant will extend hand loan of Rs.95,000/- in cash to the accused, and that too due to friendly relations. Concededly, there is no documentary proof produced on record ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:54:35 ::: 4 apeal670.08 evidencing the extension of hand loan of Rs.95,000/- in cash. It is further admitted by the complainant, that the altercation which took place on 02-4-2005 was on the issues of an amount of Rs.95,000/-, although the details of the said altercation are blurred. It is also noted by the learned Sessions Judge that the complainant has admitted that he did not have an amount of Rs.95,000/- in the bank account on the relevant date. The inference which is drawn by the learned Sessions Judge, on an overall appreciation of the material on record, is that the complainant has not shown that he could have lent an amount of Rs.95,000/- to the accused and further that it is quite improbable that such an amount would be lent to the accused five days after the altercation. The learned Sessions Judge has also noted that the accused and his cousin lodged a complaint against the complainant alleging illegal money lending and investigation was carried out by the police.
7. It is brought on record, in the cross-examination of the complainant and in defence evidence that the accused was engaged in business of herbal products. It is admitted by the complainant that the complainant used to produce pipri in 5 to 6 acres of agricultural land. Although the suggestion that the complainant and the accused were in ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:54:35 ::: 5 apeal670.08 partnership, is denied, it is admitted by the complainant that the accused did meet him in Delhi once or twice and that although the complainant did not visit Delhi often, sometimes the complainant used to depute his son. This admission is extracted in the backdrop of the earlier admission that the accused always used to go to Delhi or Mumbai for business.
8. The further suggestion given to the complainant is that a quarrel took place on the issue of the account of the business profits and blank cheque was misused by the complainant by filling up the date and contents. The suggestion is denied by the complainant. The complainant also denies the suggestion that the cheque was issued on 05-5-2001 in relation to the transaction of sale of pipri.
9. The appreciation of the evidence on record, by the learned appellate Court, is unexceptionable. The view taken by the learned appellate Court while reversing the judgment of conviction is more than possible or plausible. The version of the complainant that despite the altercation between the son of the complainant and the accused, a hand loan in cash was extended to the accused, is not believable. There is no documentary evidence produced on record to corroborate ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:54:35 ::: 6 apeal670.08 the version of the complainant. The defence is more than probablised on the touchstone of preponderance of probabilities. It would be unsafe and hazardous for this Court to interfere with the judgment of acquittal in the teeth of the evidence on record which would suggest that the version of the complainant of having extended a hand loan to the accused is extremely suspect.
10. The conclusion of the appellate Court that it is not proved that the disputed cheque was issued to discharge existing liability, is not only a possible or plausible conclusion, but is the only conclusion which could have been reached on the face of the evidence on record. In any event, the conclusion is not perverse. No compelling case is made out for this Court to interfere in the reversing judgment of acquittal.
11. The appeal is sans merit and is dismissed.
JUDGE adgokar ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:54:35 :::