apeal556of04.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 556 OF 2004
Rameshchandra Bhawarilal Ladhha,
aged about 52 years, Occ. Business,
R/o. Lalbahadur Colony, Risod Road,
lakhala, Washim,
Tahsil & District Washim
...APPELLANT
...V E R S U S...
1 Shaligram Shankarlal Agrawal,
aged about 60 years, Occ. Businessman,
R/o. Janki Nagar, Risod Road,
Lakhala Washim,
Tahsil & District Washim
2 State of Maharashtra,
Through Police Station, Washim,
Tahsil District Washim ...RESPONDENT
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Mr. S.S. Deshpande, counsel for the Appellant.
Mr. C.A. Joshi, counsel for the Respondent 1.
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CORAM:
ROHIT B. DEO, J.
DATE:
NOVEMBER 13, 2017 ORAL JUDGMENT:
Exception is taken to the judgment of acquittal delivered by Judicial Magistrate First Class, Washim in Criminal ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 2 Case 832 of 2002 dated 7.7.2004, by and under which the respondent (hereinafter referred to as "the accused) is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short).
2 Heard Shri. S.S. Deshpande, the learned counsel for the appellant and Shri. C.A. Joshi, the learned counsel for the respondent / accused.
3 The learned counsel Shri S.S. Deshpande, submits that the judgment of acquittal borders on perversity. He does not have any demur with the proposition of law that unless the view taken by the Court is demonstrably perverse, the appellate Court ought not to interfere in the judgment of acquittal. However, Shri. S.S. Deshpande relying on the judgment in T. VASANTKUMAR ..VS.. VIJAYAKUMARI, reported in (2015) 8 SUPREME COURT CASES 378 and in particular paragraph 10 thereof which is reproduced below, would submit that since the judgment of acquittal is based substantially on the finding that the disputed cheque was from the cheque book issued in the year 1995, linking thereof to the transaction of the year 2001, renders the misuse thereof a real possibility, the judgment is perverse. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 3 Paragraph 10:-
"Further, the High Court relied heavily on the printed date on the cheque. However, we are of the view that that by itself, in the absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20.5.2006 (sic 16-1.2007). The accused in her evidence brought out nothing to prove the debt of 1999 nor disprove the loan taken in 2006".
4 Per contra, Shri C.A. Joshi, the learned counsel for the accused would support the judgment of conviction and submit that the marshaling of evidence by the learned Magistrate is unexceptionable.
5 Shri. S.S. Deshpande, the learned counsel for the appellant (hereinafter referred to as "the complainant) would further invite my attention to question 6 put to the accused in the statement recorded under section 313 of the Code of Criminal Procedure and answer thereto and would contend that in view of the answer given to question 6, the accused has admitted that he received the amount of Rs. 85,000/- and that the burden to ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 4 demonstrate that the said amount is repaid was on the accused which he did not discharge. The submission is noted only for the rejection. The answer to question 6 cannot be broken down and read in the manner suggested by the learned counsel. Concededly, it is the case of the complainant that he advanced loans to the accused or made investments in the business of the accused on multiple occasions. The answer by the accused in the statement recorded under section 313 of the Code of Criminal Procedure that he has paid all the loans cannot be construed as an admission that he received Rs. 85,000/- which is the amount covered by the disputed cheque.
6 I have given my anxious consideration to the evidence on record, the submissions canvased by the learned counsel for the appellant and the findings recorded by the learned Magistrate. I am not persuaded to agree with the submission of Shri S.S. Deshpande, the learned counsel for the appellant, that the view taken by the learned Magistrate is not a possible or plausible view. 7 The learned Magistrate has recorded a finding of fact that neither in the complaint nor in the statutory notice is a disclosure made as to on which date, month or year the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 5 investment is made by the complainant with the accused. Although, the learned Magistrate does not appear to have addressed the issue, I have noted from the evidence that the investment of Rs. 85,000/- allegedly made in the year 2001, is not disclosed in the income tax return, and at any rate, the income tax returns are not produced on record. In the absence of averments in the complaint and axiomatically the proof, it is not possible to hold that the investment was made refundable within a short period. In this view of the matter, the failure of the complainant to disclose the investment or loan in the income tax returns would be one circumstance for the Court to hold that the presumption under section 139 of the Act stands rebutted. 8 The learned Magistrate has inter-alia observed thus in paragraphs 8 and 9 of the judgment:
Paragraph 8:-
"It is the fact that the presumption u/s. 139 of N.I. Act is rebutable. It is the duty of the complainant to mention specific date on which he paid the amount to the accused but this fact is nowhere mentioned by complainant in the complaint, verification, notice or in his evidence. Said cheque is of the year 1995. The complainant has ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 6 submitted in his cross-examination that he paid the amount to the accused on 6.5.2001. I found no reason why any person kept old cheque with him from the year 1995 in order to give the same when he has new cheque-book. IN this case the accused has new cheque-book with him and he issued cheque No. 632 and disputed cheque is of the year 1995, which is from cheque-book exh-43. This fact is established by the accused by adducing evidence. Considering conduct of complainant and facts on record, it appears that the complainant may take advantage of old cheque which was may be issued in the year 1995 for the transaction in between them, as counter-foil cheque book exh.-43 and evidence of complainant shows that there was transaction in between them of money since 1995".
Paragraph 9:-
"In absence of specific date of payment of amount and cheque is of the year 1995 leads me to opine that the complainant may take advantage of old signed cheque with him for the transaction of money for the year 1995 and thereby he taken the advantage of it and came with this case. In such circumstances, the presumption u/s. 139 of N.I. Act is rebuted. Therefore, i hold that the complainant has failed to establish the fact that the accused issued a cheque for payment of Rs. 85,000/- as ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 7 alleged by him dated 30.11.2001 for the payment of liability. Therefore, considering all these facts i hold that the accused is entitled for benefit of doubt and therefore, i answered this question in negative and proceed to pass the following order".
9 The learned Magistrate on a holistic appreciation of evidence on record, has come to a conclusion that the complainant failed to establish that the cheque was issued against existing liability and that the presumption under section 139 of the Act is rebutted.
10 The observations of the Hon'ble Supreme Court in T. VASANTKUMAR ..VS.. VIJAYAKUMARI on which Shri S.S. Deshpande places reliance, can not be read de-hors of the fact or in isolation. In the factual matrix, the Hon'ble Supreme Court was considering the reversal by the High Court of the concurrent finding recorded by the learned Magistrate and the learned Sessions Judge. The Hon'ble Supreme Court took note of the fact that the accused issued 'stop payment' instruction. The implication thereof is considered in paragraph 9 by the Hon'ble Supreme Court thus:
::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 8 Paragraph 9:-
"Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with the story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was topped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence".
The observations in paragraph 10 on which the learned counsel Shri S.S. Deshpande relies, can not be understood as laying down that the fact that the cheque was a part of the cheque book issued years prior to the incident, is of no significance. Be it ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 ::: apeal556of04.odt 9 noted, that in the teeth of evidence, the learned Magistrate has found it difficult to accept the very transaction of amount of Rs. 85,000/- was being advanced or invested in the year 2001. I do not see any perversity either in the approach of the Magistrate or in the conclusions recorded in the judgment of acquittal.
The appeal is sans merit and is rejected.
JUDGE RS Belkhede ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:54:01 :::