apeal605.08.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.605 OF 2008
Jadhavlal s/o Mavji Patel,
Aged 40 years, Occupation: Business,
Proprietor M/s Mavji Vishram Patel,
R/o 220, Timber Market,
Lakadganj, Nagpur. ....... APPELLANT
...V E R S U S...
Lalit s/o Jasraj Bhai Patel,
Aged Major, Occupation: Business,
Proprietor M/s Shriram Motors
Pandhurna Road, Near Jain Motors,
Warud, District Amravati.
Nagpur Address
Flat No.304, Gaurav Deluxe Apartment,
Telephone Exchange Chowk,
Lakadganj, Nagpur. ....... RESPONDENT
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Shri Lalit B. Patel, Advocate for Appellant.
Shri S.V. Sirpurkar, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
24 NOVEMBER, 2017.
ORAL JUDGMENT
1] The appellant, who is the original complainant, is
aggrieved by the judgment and order dated 31.03.2008 in ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 2 Summary Criminal Case 4931/2005 passed by the 2 nd Joint Civil Judge, Junior Division and Judicial Magistrate First Class, Special Court 138 of N.I. Act, Nagpur, 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 (hereinafter referred to as "the Act"). 2] Heard Shri L.B. Patel, the learned counsel for the appellant and Shri S.V. Sirpurkar, the learned counsel for the respondent.
3] The submission of the learned counsel for the appellant, is that the accused has not rebutted the statutory presumption under section 139 of the Act and that the finding of the learned Magistrate that the cheque was not issued towards discharge of existing legal liability, borders on perversity. The learned counsel for the accused invites my attention to answer to the question 6 in the statement recorded under section 313 of the Code of Criminal Procedure and contends that the accused admits payment of Rs.5,49,437/-, which would suggest ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 3 that the said payment made between 07.08.2000 to 05.03.2001, was towards partial payment of the goods purchased by the accused. This submission is in the backdrop of the finding recorded by the learned Magistrate that the complainant has not proved that the goods (timber) against the payment of which the disputed cheque is allegedly issued, were duly delivered to the accused. The learned counsel for the accused further submitted that the delivery of goods by the complainant to the accused is held proved by the Civil Court.
4] Per contra, Shri Patel, the learned counsel for the appellant submits that the learned Magistrate has taken a possible view and in the absence of any perversity in appreciation of evidence or in application of law, this Court ought not to interfere in the judgment of acquittal.
5] The gist of the complaint under section 200 of the Code of Criminal Procedure, 1973 read with section 138 and 142 of the Act, is thus:
The complainant is the Proprietor of M/s Mavji ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 4 Vishram Patel and is a timber merchant. The accused, was at the relevant time, also engaged in timber business.
Between 24.07.2000 to 06.05.2001, the accused purchased timber worth Rs.18,74,437/-. The accused paid Rs.5,49,437/- on various dates between 26.12.2000 and 05.03.2001. At the end of financial year 2000-2001 amount of Rs.13,25,000/- was outstanding against the accused. In the next financial year, on 06.05.2001, the accused purchased timber worth Rs.4,03,000/- on credit and the total amount outstanding against the accused swelled to Rs.17,28,000/-.
The accused issued three cheques towards discharge of the said existing liability, for Rs.7,00,000/-, 6,25,000/- and 4,03,000/- dated 07.05.2001, 12.05.2001 and 26.05.2001 respectively. The complaint relates to cheque 375131 for Rs.7,00,000/-, which was dishonoured when the complainant presented the cheque for encashment. The assertion in the complaint is that the cheque was dishonoured for want of sufficient funds in the account of the accused, statutory notice was issued by registered post and under certificate of posting, the notice is deemed to have been served on the accused, the accused ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 5 did not comply with the notice and the complainant was constrained to set in motion proceedings under the act. 6] The defence of the accused, as is discernible from the trend and tenor of the cross-examination and the defence evidence is that the disputed cheque and the other two cheques referred to by the complainant, were handed-over towards the price of the timber to be supplied in future. The accused has stepped into the witness box. The learned Magistrate has held that although the defence of the accused is suspect, the statutory presumption under section 139 of the Act is rebutted by bringing on record material during the cross-examination of the complainant, which material is sufficient to rebut the statutory presumption under section 139 of the Act, on the touchstone of preponderance of probabilities.
7] The complainant has examined himself, Jaiyash Joshi CW 2, Ramkrishna Dharmik as CW 3 and Ramchandra Chaudhari as CW 4 and in defence the accused examined himself as DW 1 and Sanjay Digde DW 2. In view of the findings recorded by the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 6 learned Magistrate on the reason for return of the disputed cheque and the service of the statutory notice, the only material witnesses are the complainant and the accused. It would suffice, if I have a relook at the evidence of the complainant and the accused for the limited purpose of ascertaining whether the view taken by the learned Magistrate is a possible or plausible view. The learned counsel for the accused is more than justified in contending that even if a second view is possible, this Court must refrain from substituting its own view for the view taken by the learned Magistrate unless the judgment impugned is demonstrably perverse.
8] The examination-in-chief of the complainant is broadly consistent with the contents of the complaint. In the cross-examination, it is extracted that bills at Exh.32 to 38, which according to the complainant evidence the sell of timber to the accused, do not bear the signature of the accused. The complainant further admits that the truck number mentioned in the bills is of the truck which delivered the goods to the complainant and not the truck which delivered the goods to the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 7 accused. While the complainant initially states that no transit pass is necessary within the limits of the Municipal Corporation, in the same breath he claims to have given the transit pass to the accused. It is admitted by the complainant that no document is produced to demonstrate that goods referred to in Exh.32 to 38 were received by the complainant. Further admission is that although accounts of business transactions are maintained, the same are not produced on record. The complainant denies the suggestion that the disputed cheque was issued towards advance payment of the timber ordered by the accused.
9] The evidence of the accused is marshalled and appreciated by the learned Magistrate inter alia in paragraphs 21 to 24 of the judgment impugned. Having done so, the learned Magistrate has held that the statutory presumption cannot be held to have been rebutted on the strength of the defence evidence. However, the learned Magistrate has further held that in view of admissions extracted in the cross-examination of the accused, and the witness of the defence, the statutory presumption could still be rebutted by the material produced on record by the complainant ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 8 himself and with the aid of material brought on record during the cross-examination of the complainant. I do not find any serious error in the approach of the learned Magistrate. 10] The learned Magistrate has recorded a finding of fact that the defence is probablized in view of the admissions extracted from the complainant, inter alia that no documentary proof of the delivery of the goods is produced on record, that the relevant accounts are not produced on record and that the basic particulars like the mode of transportation or the registration number of the vehicle etc. are not forthcoming, that the bills Exh.32 to 38 do not bear the signature of the accused, that the complainant has not produced on record any document to prove that the goods referred to in Exh.32 to 38 were received by the complainant. The view taken is a possible view and is certainly not perverse. 11] The learned counsel for the complainant strenuously urged that the answer to question 6 in the statement recorded under section 313 of the Code of Criminal Procedure proves that the accused made the payment of Rs.5,49,437/- as part payment ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 9 of the total amount which according to the complainant is outstanding against the accused, and that the said answer is destructive of the defence and is ipso facto sufficient to prove that the disputed cheque was issued to discharge existing liability or debt. The submission is noted only for rejection. No such inference, much less legal inference can be drawn from the answer given in response to question 6 in the 313 statement. The question 6 and the answer read thus:
Q6 It has further come in his evidence that you paid an amount of Rs.5,49,437/- to the complainant and Rs.17,28,000/- is outstanding against you. What you have to say ?
Ans I had one earlier transaction for which I had paid amount Rs.5 - 5 lakhs. There is nothing outstanding claimed. I did not purchase goods as per bills submitted.
12] All that the accused states in response to question 6 is that the payment of Rs.5,49,437/- relates to an earlier transaction. 13] On a holistic consideration of the judgment impugned, there is no compelling reason demonstrated for this to ::: Uploaded on - 24/11/2017 ::: Downloaded on - 28/11/2017 01:25:36 ::: apeal605.08.J.odt 10 interfere in the judgment of acquittal.
14] The appeal is sans merit and is rejected.
JUDGE
NSN
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