apeal369of2010.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.369 O
F 2010
Shri. Ganesh Nagari Sahakari Pat
Sanstha Akola,
Through its Authorized Signatory,
Anant Anil Sabde,
Aged : 31 years,
Occupation : Service,
R/o. Akola, Civil Line Branch,
Branch situated at Shastri Nagar,
Civil Line, Akola ...APPELLANT
...V E R S U S...
Shri. Charudatta S/o. Uttamrao Pande,
Adult., Occupation: Business,
R/o. Behind Harisons Shop,
Gupte Wadi, Gupte Plots,
Jatharpeth, Akola,
Tahsil & District Akola. ...RESPONDENT
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Mr. Ved Deshpande, counsel for the Appellant.
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CORAM
: ROHIT B. DEO , J.
DATE :15 . 1 1 . 2017 ORAL JUDGMENT:
Exception is taken to the judgment and order dated 4.8.2009 in Summary Criminal Case 5753 of 2007 delivered by Judicial Magistrate First Class, Akola, by and under which, the ::: Uploaded on - 15/11/2017 ::: Downloaded on - 17/11/2017 01:58:07 ::: apeal369of2010.odt 2 respondent is acquitted of offence punishable under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
2 The appellant (hereinafter referred to as "the complainant") instituted complaint under section 138 read with section 142 of the Act against the respondent (hereinafter referred to as "the accused"), the gist of which is that the accused applied for and was sanctioned loan of Rs. 50,000/- (Rupees Fifty Thousand). The accused, towards repayment of the outstanding loan issued cheque dated 5.7.2007 for Rs. 54,246/-, which was drawn on State Bank of India, Krushi branch, Akola. The complainant presented the said cheque for encashment, the cheque was dishonoured for want of sufficient funds, the statutory notice which was issued was not complied with and hence the complainant instituted the complaint.
3 The defence of the accused, who has stepped into the witness box, is that the loan was indeed applied for and sanctioned, but then since no other security was obtained by the complainant society, at the instance of the complainant, the accused gave 9 cheques duly signed although blank in other ::: Uploaded on - 15/11/2017 ::: Downloaded on - 17/11/2017 01:58:07 ::: apeal369of2010.odt 3 contents, as security. The accused states that while he is ready and willing to pay the outstanding, at the relevant time, the amount of Rs. 54,246/- which is according to the accused is written / filled in by the bank on the disputed cheque, was not due and payable. 4 The learned Magistrate was alive to the statutory presumption under section 139 of the Act. The learned Magistrate has held that the statutory presumption stands rebutted. The learned Magistrate has noted that the complainant did not produce on record the accounts which would have thrown light on the amount due and payable by the accused to the complainant at the relevant time. The learned Magistrate has held that the accused has probabilized the defence that signed cheques, with amount column blank, were handed over as security. The Learned Magistrate has further noted that even a simple arithmetical calculation would reveal that as on the date of the cheque, an amount of Rs. 54,246/- could not have been due and payable to the complainant.
5 Shri. Ved Deshpande, the learned counsel for the complainant submits that the judgment impugned is perverse. The Learned Magistrate ought to have appreciated that since the loan ::: Uploaded on - 15/11/2017 ::: Downloaded on - 17/11/2017 01:58:07 ::: apeal369of2010.odt 4 per se is not in dispute and nor is the signature on the disputed cheque, the burden was entirely on the accused to rebut the statutory presumption under section 139 of the Act. As a proposition, the submission of Shri. Deshpande, does not call for any demur. However, in the factual matrix, I do not see anything wrong in the finding recorded that the presumption stands rebutted.
6 The loan was sanctioned on 10.2.2006 and the first installment was concededly due and payable on 1.3.2006, the disputed cheque is dated 5.7.2007, the monthly installment was Rs. 1700/- and the rate of interest was 15% as is obvious from the promissory note Exh. 44. A mathematical calculation will reveal, that if the entire loan was not recalled and only a part payment was made, as on 2.7.2007, an amount of Rs. 54,246/- could not have been due and payable. Be it noted, that neither the complaint nor the notice nor the evidence of the complainant asserts that the entire loan was recalled. Au contaire, it has come on record that the cheque was issued towards part payment of loan. Be that as it may, even if arguendo, it is assumed that the entire loan was recalled, the figure of Rs. 54,246/- does not take the case of the complainant any further. In the teeth of the failure ::: Uploaded on - 15/11/2017 ::: Downloaded on - 17/11/2017 01:58:07 ::: apeal369of2010.odt 5 of the complainant to produce on record the accounts, I do not find any perversity in the view taken by the learned Magistrate. The view taken is a possible or plausible view and there is no compelling reason for this Court to interfere with the judgment of acquittal.
The appeal is sans merit and is dismissed.
JUDGE RS Belkhede ::: Uploaded on - 15/11/2017 ::: Downloaded on - 17/11/2017 01:58:07 :::