apeal271of16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.271 OF 2016
Shri. Sheshnath S/o. Rambachhan Singh,
Aged 42 years, Occupation - Service,
R/o. At post Saoner, Tahsil Saoner,
District Nagpur
Police Station Saoner, .....APPELLANT
...V E R S U S...
Shri. Keshvrao S/o. Rambhauji gondane,
Aged Major,
Occupation Business,
Proprietor Ram Agency, Gujarkhedi,
Tahsil Saoner, District Nagpur
Police Station Saoner, ...RESPONDENT
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Mrs. M.N. Hiwase, counsel for the Appellant.
None for the Respondent.
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CORAM:
ROHIT B. DEO, J.
DATE:
NOVEMBER 01, 2017 ORAL JUDGMENT:
Exception is taken to judgment and order dated 10.7.2015 in Summary Criminal Case 99 of 2013 delivered by the Judicial Magistrate First Class, Saoner, acquitting the respondent of offence punishable under section 138 of the Negotiable ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 2 Instruments Act, 1881 (hereinafter referred to as the "Act" for short). The appellant, who is the original complainant was employed with Madhyadesh Paper Mill Limited, Malegaon, Tahsil Saoner, District Nagpur. He contends that he was acquainted with the accused through one Prem Ranjan Singh. The accused is the proprietor of Ram Agency and is engaged in the business of petrol pump located at mouza - Gujarkhede, Nagpur, Saoner Road. 2 The complaint instituted under section 138 of the Act reveals that the case of the complainant was that the accused alongwith Prem Ranjan Singh approached the complainant on 10.9.2012 seeking handloan of Rs. 2 lakhs. On the recommendation of Prem Ranjan Singh, on 15.9.2012 the accused handed over the amount of Rs. 2 lakhs in cash to the accused, in the presence of Prem Ranjan Singh. The accused promised to repay the said amount of Rs. 2 lakhs within two months. The complainant demanded the refund and after two month the accused issued cheque 185890 drawn on State Bank of India, Saoner branch dated 15.11.2012 for Rs. 2 lakhs. The said cheque was presented by the complainant to his banker, the cheque was dis-honoured and since the statutory notice was not complied with, complaint under section 138 of the Act was instituted. ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 3 3 The complainant has examined himself as CW 1. In paragraph 2 of the examination in chief, he has deposed that on 10.9.2012 Prem Ranjan Singh and the accused approached the complainant seeking loan of Rs. 2 lakhs for the accused. CW 1 has further deposed that on 15.9.2012, he handed over Rs. 2 lakhs to the accused through Prem Ranjan Singh in cash. In the cross- examination, in paragraph 6, CW 1 admits that he did not have any relation with accused. He further admits that he did not personally hand over the amount to accused and that he handed over the amount through Prem Ranjan Singh. CW 1 further admits that the disputed cheque Exh. 40 was handed over to CW 1 by Prem Ranjan Singh and not by the accused. CW 1 has no documentary or other proof save and accept his word and that of Prem Ranjan Singh, to show that he extended loan of Rs. 2 lakhs to the accused. CW 1 further admits that he has not disclosed the loan of Rs. 2 lakhs in the income tax returns. 4 Prem Ranjan Singh is examined as CW 2. His version is at stark variance with that of CW 1. He states that the accused sought loan from him. CW 2 states that he was in possession of amount taken on loan from the complainant and the same amount ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 4 was given to the accused with the consent of the complainant. CW 2 states that he informed the accused that the amount was of CW 1.
5 The defence of the accused, as is discernible from the trend of the cross-examination and the statement recorded under section 313 of Criminal Procedure Code was that he had borrowed some amount from one Gurubhai Singh resident of Hyderabad and seven blank cheques were handed over to the said lender through Prem Ranjan Singh. One of the cheques was misused, is the defence.
6 Heard Smt. M.N. Hiwase, the learned counsel for the appellant. None appears on behalf of the accused. 7 Smt. M.N. Hiwase, the learned counsel for the appellant relied on the judgment of this Court reported in 2016 DGLS (Bom.) 1337 - Bharati Walia Vs. Krishnan Mamlal Kapoor to contend that the statutory presumption under section 139 is not rebutted by the accused. I am afraid, I am not in a position to agree.
::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 5 8 The complainant, has not produced cogent material on record that he was in a position to extend a handloan of Rs. 2 lakhs in cash to the accused. My attention is invited to an entry in the bank account suggesting that Rs. 1,70,000/- was withdrawn from the account of the complainant few day prior to the alleged extension of loan. However, a perusal of the bank account reveals that an amount of Rs. 1,88,000/- or thereabout was deposited in the account of the complainant in close proximity of time. It is not clear as to who has deposited the said amount in the account of the complainant. Be that as it may, even according to the complainant he did not have any relation to the accused and it is admitted in the cross-examination that the disputed cheque Exh. 40 was handed over to him not by the accused but by Prem Ranjan Singh. The learned Magistrate has noted that the version of the complainant is extremely doubtful. The learned Magistrate has recorded a finding of fact that the complainant has not proved that he had the capacity to extend the loan to the accused. The learned Magistrate has further observed that it is difficult to digest that the entire life savings was handed over by the complainant to the accused in cash and that too without any document recording the loan transaction.
::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 6 9 I do not find any perversity in reasoning of the learned Magistrate. CW 2 - Prem Ranjan Singh is a transporter with four trucks. The complainant, as is apparent from perusal of the bank statements, appears to be a modest employee. It is absolutely unbelievable that CW 2, a prosperous truck owner would have amount taken on loan from the complainant. It is equally difficult to believe that the prosperous transporter has handed over the amount of the complainant to the accused. The finding of the learned Magistrate that the complainant has failed to prove the existence of legally enforcible debt or liability is a possible view and is certainly not perverse. The judgment in Bharati Walia Vs. Krishnan Mamlal Kapoor cited by the learned counsel for the appellant Smt. M.N. Hiwase, does not take the case of the appellant any further. The observations in the said judgment are made in the context of the factual matrix of that case.
10 The learned Magistrate was alive to the statutory presumption under section 139 of the Act and has recorded a finding that the accused has rebutted the presumption. I am inclined to agree. It is not necessary that the accused should step into the witness box to rebut the presumption. In the present case ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 ::: apeal271of16.odt 7 presumption is rebutted in view of the material brought on record in the cross-examination of the complainant and CW - 2 Prem Ranjan Singh.
The appeal is without substance and is rejected. Bail bond shall stand discharged.
Order accordingly.
JUDGE RSBelkhede ::: Uploaded on - 01/11/2017 ::: Downloaded on - 03/11/2017 01:58:11 :::