apeal371.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.371 OF 2006
Vijay s/o Laxmanrao Golhar,
Aged 59 years, Occ: Retired,
R/o 9 SBI Colony, Sneh Nagar,
Nagpur. ....... APPELLANT
...V E R S U S...
Gajanan s/o Nathuram Gabhane,
Aged 35 years, Occ: Business,
R/o Balamwar's House, Ward No.39,
Ganesh Colony, Sahakar Nagar Road,
Ranapratap Nagar, Nagpur. ....... RESPONDENT
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Shri V.G. Wankhede, Advocate for Appellant.
None for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: 22 nd NOVEMBER, 2017. ORAL JUDGMENT 1] Exception is taken to the judgment and order dated
17.05.2006 passed by the 2nd Joint Civil Judge, Junior Division and Judicial Magistrate First Class, 138 N.I. Act Special Court, Nagpur in Summary Criminal Case 2682/2005, by and under which, the respondent (hereinafter referred to as "the accused") is ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: apeal371.06.J.odt 2 acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
2] Heard Shri V.G. Wankhede, the learned counsel for the appellant and none appears for the respondent-accused. 3] Shri V.G. Wankhede, the learned counsel for the appellant (hereinafter referred to as "the complainant") submits that the learned Magistrate committed a serious error of law in not appreciating that the accused utterly failed to rebut the statutory presumption under section 139 of the Act. He would submit, that the signature on the disputed cheque Exh.25 is not disputed by the accused. Shri V.G. Wankhede, fairly does not dispute that during the pendency of the prosecution, the accused did pay the complainant an amount of Rs.2,30,000/-. The learned counsel further does not dispute that in the cross-examination the complainant admits that he is insisting that the accused pay him additional amount towards "expenses".
::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: apeal371.06.J.odt 3 4] Since the appeal challenges the judgment of acquittal, unless the view taken by the learned Magistrate is shown to be perverse, this Court will not interfere and substitute its own view, even if it is assumed that a second view is a possible. 5] CW 1 (complainant) admits that there was an agreement to purchase land and that an amount of Rs.10,00,000/- was paid by the complainant to the accused as earnest. It is further the case of the complainant, that since the transaction did not materialize, the agreement was terminated and towards refund of the consideration of Rs.10,00,000/-, the accused issued two cheques in favour of the complainant of Rs.5,00,000/-, the details of which are noted on the agreement. The agreement is not produced on record. The complainant however, admits that two cheques of Rs.5,00,000/- each were issued by the accused. The complainant further denies the suggestion that two cheques were encashed. Be that as it may, the learned Magistrate was justified, in taking note of the fact that the complainant suppressed the issuance of these two cheques from the court. ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: apeal371.06.J.odt 4 6] The complainant approached the Court asserting that out of Rs.10,00,000/- which the accused duty bound to refund, the accused paid Rs.7,00,000/- and against the balance of Rs.3,00,000/- the disputed cheque Exh.25 was issued. The learned Magistrate has noted the suppression in the complaint and the fact that the accused did pay Rs.2,30,000/- to the complainant during the pendency of the complaint. The learned Magistrate has in particular noted the following portion of the cross-examination:
"It is true to say that during pendency of this case out of the amount of Rs.3,00,000/- of cheque Exh.25, the accused has paid me the amount of Rs.2,30,000/-. It is true to say the even after receipt of Rs.2,30,000/- from the accused out of the cheque amount Exh.25, I am demanding some more amount from the accused, then the amount of cheque. Witness volunteers that he is claiming additional amount of expenses. It is not true to say that I am deposing false."
7] The finding of the learned Magistrate, that the complainant failed to prove that the cheque was issued towards discharge of existing liability, is a possible view and is certainly not perverse. It is trite law that the accused need not step into the witness box to prove the defence under section 139 of the Act. ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: apeal371.06.J.odt 5 The cumulative effect of the suppression, the admission that despite the receipt of Rs.2,30,000/- during the pendency of the complaint the complainant is demanding an "additional amount" towards expenses, the failure and/or refusal of the complainant to come clean on the agreement and to suppress the copy of the agreement would be that the statutory presumption stands rebuttal.
8] Since the view taken by the learned Magistrate is a possible view, I do not see any compelling reason for this Court to interfere in the judgment of acquittal.
9] The appeal is sans merit and is rejected.
JUDGE
NSN
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