1 apeal614.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.614 OF 2006
Rahul Ramesh Dubewar,
Aged about 30 years,
Occupation - Cultivation,
R/o Udasi Ward, Pusad,
District Yavatmal. .... APPELLANT
VERSUS
Ritesh Purnaji @ Punjaji Patil,
Aged about 31 years,
R/o In front of the House of
Dr. Godbole, Old Locality Badnera,
District Amravati. .... RESPONDENT
______________________________________________________________
Ms. Rucha Pande, Advocate h/f. Shri Shantanu Ghate, Advocate for the
appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 1 NOVEMBER, 2017.
st ORAL JUDGMENT :
Challenge is to the judgment and order dated 05-9-2005 in Summary Criminal Case 1177/2002, delivered by the learned Judicial Magistrate First Class, Court 1, Pusad, acquitting the respondent- ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:58:10 :::
2 apeal614.06 accused of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").
2. Heard Ms. Rucha Pande, learned Advocate holding for Shri Shantanu Ghate for the appellant. None appears on behalf of the respondent.
3. The gist of the complaint under Section 138 of the Act is that in view of friendly relations between the complainant and the accused, a hand loan of Rs.40,000/- was extended by the complainant to the accused and towards refund thereof the accused issued cheque 452972 for Rs.40,000/- dated 27-6-2002 in favour of the complainant. The said cheque was presented for encashment to the Yavatmal Urban Co-operative Bank Limited, Pusad Branch on 27-6-2002, the said cheque was dishonoured by the banker of the accused for want of sufficient funds, a statutory notice was issued which was not complied with by the accused, and the complainant instituted proceedings under Section 138 of the Act.
4. The defence of the accused, as is discernible from the trend of the cross-examination and the statement recorded under ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:58:10 ::: 3 apeal614.06 Section 313 of the Criminal Procedure Code is that he did not issue any cheque in favour of the accused muchless towards discharge of liability. The disputed cheque was stolen from the office of the accused to which the complainant had free and unhindered access, is the defence.
5. The accused has examined D.W.1 Pandurang Bobade at Exhibit 61. The accused has also stepped into the witness box to rebut the statutory presumption under Section 139 of the Act. The accused has proved that an application dated 28-5-2002 was addressed to his banker to stop payment of the disputed cheque. This is proved by producing on record extract of register maintained by the Punjab National Bank recording applications of stop payment. The accused has also proved reply sent to the complainant in response to the statutory notice and the UPC receipt (Exhibit 71 and Exhibit 72 respectively). The receipt of the reply, is, however, denied by the complainant.
6. The learned Magistrate has recorded a finding that the accused has rebutted the statutory presumption and further a finding that the complainant has not proved that the disputed cheque was issued towards discharge of legal enforceable debt or liability. The ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:58:10 ::: 4 apeal614.06 learned Counsel Ms. Rucha Pande would submit that the said findings are perverse.
7. The case of the complainant is that the accused issued cheque dated 27-6-2002 towards refund of hand loan of Rs.40,000/-. The complainant has not brought on record as to on which date/s the amount of Rs.40,000/- was allegedly given to the accused as hand loan. Be that as it may, since the accused has proved that the stop payment instructions were issued to his banker on 28-5-2002, the version of the complainant that the accused issued the disputed cheque dated 27-6-2002 is extremely suspect, to say the least. The complainant has no documentary proof of the loan transaction nor has any independent witness been examined to substantiate the version of the complainant that he extended hand loan of Rs.40,000/- in cash to the accused. The learned Magistrate is justified in recording a finding that the evidence of the complainant is not trust worthy. Be it noted, that while in the statutory notice, in the complaint and in the examination-in-chief, the version of the complainant is that Rs.40,000/- was given to the accused as hand loan and the disputed cheque was issued against refund of the said loan, in the cross- examination of the accused, it is suggested that the accused handed ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:58:10 ::: 5 apeal614.06 over blank cheque as security since the entire investment in the business of the accused is made by the complainant. The suggestions given in the cross-examination of the accused ip so facto dent the credibility of the evidence of the complainant.
8. There is no compelling reason for me to interfere with the judgment of acquittal impugned. The view taken is a possible view and is certainly not perverse.
9. The appeal is sans merit and is dismissed. Bail bond of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 01:58:10 :::