1 apeal386.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 386 OF 2016
Shri Rajesh s/o Sulchand Lanjewar,
Aged about 45 years,
Occupation - Retired,
R/o Deepak Nagar, Near Maitri Colony,
Plot No.117, Nari Road, Nagpur-440026. .... APPELLANT
VERSUS
Shri Sunil s/o Wasudeo Ramteke,
Aged - Major,
Occupation - Business,
R/o Plot No.145, Maitric Colony,
Nari Road, Nagpur -440016. .... RESPONDENT
______________________________________________________________
Shri R.R. Vyas, Advocate for the appellant,
Shri O.D. Kakde, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 20
NOVEMBER, 2017
th
ORAL JUDGMENT :
Exception is taken to the judgment and order of acquittal dated 25-1-2016 in Summary Criminal Case 24026/2014 delivered by the learned 6th Judicial Magistrate First Class and Special Court for the offence punishable under Section 138 of the Negotiable Instruments ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 ::: 2 apeal386.16 Act, 1881 (hereinafter referred to as the "Act").
2. Heard Shri R.R. Vyas, learned Advocate for the appellant (hereinafter referred to as the "complainant") and Shri O.D. Kakde, learned Advocate for the respondent (hereinafter referred to as the "accused").
3. Shri R.R. Vyas, learned Advocate has two fold submissions to make in assailing the judgment and order of acquittal.
4. Shri R.R. Vyas, learned Advocate would submit that the learned Magistrate has committed a serious error in law in not appreciating the import and implication of the statutory presumption of Section 139 of the Act. He would further submit that the statutory presumption is activated no sooner than the accused does not dispute the signature on the cheque and a defence is not probablised, as is wrongly held, by the learned Magistrate only by bringing on record inconsistencies between the inter se stands of the complainant. The accused ought to have adduced positive evidence to rebut the presumption to probablise the defence on the touchstone of preponderance of probabilities, is the submission. ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 :::
3 apeal386.16
5. The second submission that the learned Magistrate has committed a serious error of law in attaching more importance than was warranted to the purported inconsistencies between the stand taken in the statutory notice and the complaint and in the evidence before the Court. Shri R.R. Vyas, learned Advocate would contend, that if the evidence is considered holistically, the stands were not so inconsistent as to dent the credibility thereof.
6. Per contra, Shri O.D. Kakde, learned Advocate for the accused would submit that the learned Magistrate committed no error in holding that the statutory presumption stands rebutted. He would contend that the defence is more than probablised through the admissions extracted during the cross-examination and it was not necessary for the accused to step into the witness box.
7. The gist of the complaint instituted by the complainant is that he is a retired military personnel and the accused induced the complainant to hand over Rs.12,02,000/- and further induced the mother of the complainant to hand over Rs.3,00,000/- on the assurance that the brother and sister of the complainant will be employed in the hospital to be constructed in Uppalwadi Area of ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 ::: 4 apeal386.16 Nagpur. The assertion in paragraph 3 of the complaint is that due to the water supply business of the accused, he has excellent relations with the officers of the Nagpur Municipal Corporation. The insinuation upon a holistic reading of the complaint, is that the money was given by the complainant to the accused since employment with Nagpur Municipal Corporation Hospital was promised.
8. The complainant examined himself and it is extracted in the cross-examination that the complainant has not produced any documentary proof that he received Rs.22,00,000/- to Rs.23,00,000/- as retirement benefits. The complainant was not in a position to produce any document to prove that he extended the amount to the accused. The complainant was further in no position to show that he withdrew any particular amount from the bank account muchless the huge amount which according to him was paid to the accused. It is suggested to the complainant that he as a fact extended a loan to the brother of the accused. The complaint under Section 138 of the Act is an extension of the said dispute was the suggestion, which the complainant has denied. However, the complainant admits that he has instituted prosecution against the accused and his brother, which prosecution appears to be an independent and separate prosecution for ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 ::: 5 apeal386.16 offence punishable under the Indian Penal Code. The attention of the complainant is invited to Exhibit 35 which is copy of the first information report, a perusal of which would reveal that the complainant has indeed taken mutually inconsistent or destructive stands.
9. The submission of the learned Counsel that the burden of proof is shifted on the complainant or that the learned Magistrate has erroneously held that the presumption under Section 139 of the Act is rebutted, is noted only for rejection. The learned Magistrate was alive to the statutory presumption under Section 139 of the Act. The finding of fact recorded by the learned Magistrate that the complainant utterly failed to demonstrate that the disputed cheques were issued towards discharge of existing liability, is unexceptionable. The admissions in the cross-examination clearly falsify the case of the complainant and it was not necessary for the accused to step into the witness box or to adduce any other evidence.
10. The learned Counsel for the accused is further justified in contending that the view taken by the learned Magistrate is a possible view and is certainly not perverse.
::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 :::
6 apeal386.16
11. I see no compelling reason to interfere in the judgment and order of acquittal. The appeal is sans merit and is rejected.
JUDGE adgokar ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 02:05:10 :::