1 apeal699.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 699 OF 2008
Ishwarsinh Ramsinh Pawar,
Aged about 61 years,
Occupation - Retired,
R/o Swagatam Colony, Gopal Nagar,
(P.S. Rajapeth), Amravati. .... APPELLANT
VERSUS
Smt. Warsha Dadarao Hiwrale,
Aged about 38 years,
Occupation - Service,
R/o Bhartiya Colony, Chatyrapati
Talao Road, Amravati. .... RESPONDENT
______________________________________________________________
Shri A.J. Mirza, Advocate h/f. Shri Masood Shareef, Advocate for the
appellant,
Shri R.V. Shiralkar, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 23
NOVEMBER, 2017
rd
ORAL JUDGMENT :
The challenge is to the judgment and order dated 30-6-2008 in Summary Criminal Case 6288/2005 delivered by the learned Judicial Magistrate First Class, Court 6, Amravati, by and under ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 2 apeal699.08 which the respondent (hereinafter referred to as the "accused") is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").
2. Heard Shri A.J. Mirza, learned Advocate holding for Shri Masood Shareef, Advocate for the appellant (hereinafter referred to as the "complainant") and Shri R.V. Shiralkar, learned Advocate for the accused.
3. Shri A.J. Mirza, learned Advocate submits that the findings recorded by the learned Magistrate are unsustainable. The import and implication of Section 139 of the Act is not appreciated correctly, is the submission. The receipt (Exhibit 68) and the issuance of the disputed cheque (Exhibit 67) cumulatively were sufficient to activate the presumption under Section 139 of the Act, is the submission. Shri A.J. Mirza, learned Advocate would then submit that the failure of the accused to reply the statutory notice would also be a circumstance against the accused.
4. Per contra, Shri R.V. Shiralkar, learned Advocate submits that there is no perversity in either the approach or the findings ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 3 apeal699.08 recorded. The view taken by the learned Magistrate is a possible view and in the absence of perversity, this Court ought not to interfere with the judgment of acquittal, is the submission.
5. Shri R.V. Shiralkar, learned Advocate invites my attention to the finding recorded by the learned Magistrate, which finding is consistent with the evidence on record, that although the complainant, who was working as a Talathi, is an income tax payee, the transaction is not reflected in the income tax returns. It is not as if the amount of Rs.2,00,000/- which according to the complainant was given to the accused as loan, is a small amount. The period for which this amount was lent is also not short. The submission of Shri R.V. Shiralkar, learned Advocate is that since the amount advanced as hand loan was not small and the period was not short, the fact that the transaction is not disclosed in the income tax returns would be one circumstance which would rebut the statutory presumption under Section 139 of the Act.
6. Shri R.V. Shiralkar, learned Advocate would then submit, that according to the complainant Rs.1,35,000/- was paid to the accused by cheque and the balance amount of Rs.65,000/- was paid in ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 4 apeal699.08 cash. The complainant, however, did not bring on record any evidence even to prove the payment of Rs.1,35,000/-, which being allegedly payment by cheque, could have been easily proved by documentary evidence. In rebuttal Shri A.J. Mirza, learned Advocate for the complainant invites my attention to the receipt dated 24-7-2004 (Exhibit 68) and contends that in view of the fact that the amount of loan is duly acknowledged by the accused nothing further was required to be brought on record.
7. I have given my anxious consideration to the rival submissions. Shri R.V. Shiralkar, learned Advocate is right in contending that this Court ought not to interfere in a judgment of acquittal unless the view taken borders on perversity. If the view taken is a possible view, this Court will not substitute the said view by its own view, assuming that two views are possible.
8. The learned Magistrate has not committed any glaring error either of fact or in law in holding that the complainant has not proved that the cheque was issued towards discharge of existing liability. It is not as if the signature on the cheque was admittedly that of the accused. The issuance of the cheque and the signature thereon ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 5 apeal699.08 was a contested and contentious issue. The fact that the complainant did not produce on record, evidence which ought to have been easily available to prove that Rs.1,35,000/- was paid to the accused by cheque, is a circumstance which ipso facto is sufficient to rebut the presumption. At any rate, the learned Magistrate was more than justified in drawing an adverse inference against the complainant. The fact that the complainant, who is a Government employee, did not disclose the transaction in the income tax return although neither was the amount small nor the period for repayment short, is another circumstance against the complainant. The version of the complainant, that he received Rs.5,00,000/- as earnest amount against a transaction of sale of agricultural land, is not substantiated by any documentary evidence. It is noted by the learned Magistrate that the complainant has not produced on record any material to suggest that he owned agricultural land muchless material to show that he received Rs.5,00,000/- as earnest.
9. The appreciation of the effect of document Exhibit 68 by the learned Magistrate cannot be seriously faulted. Concededly, Exhibit 68 bears the signatures of two witnesses, none of whom have been examined. The fact that the said document Exhibit 68 is ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 6 apeal699.08 exhibited in the evidence of the complainant, who has deposed that the signature is that of the accused, does not take the case of the complainant any further. It is trite law that exhibiting a document is not a proof of the contents thereof. I do not find any perversity in the appreciation of the said document by the learned Magistrate.
10. The learned Magistrate has also noted that serious mistakes were committed by the complainant, one glaring mistake being that instead of the number of cheque, the number of the bank account is mentioned in the statutory notice and complaint. I do not express any opinion on the weightage given by the learned Magistrate to the inadvertent errors in mentioning the number of cheque. However, I am inclined to agree with the observation of the learned Magistrate that though the complainant moved application for correcting certain errors, he chose to withdraw the same and permitted the errors to be on record till the conclusion of the trial. Be that as it may, as I have observed, I am not inclined to record any finding on the weightage to be given to the inadvertent errors committed by the complainant in mentioning the number of the cheque.
11. On a holistic appreciation of the evidence on record, I do ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 ::: 7 apeal699.08 not see any compelling reason to interfere in the judgment of acquittal. The view taken by the learned Magistrate is a possible view and is certainly not perverse. The appeal is sans merit and is dismissed.
JUDGE adgokar ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:42:05 :::