apeal10of2012.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.10 OF 2012
Yogesh Wadhumal Balani,
Aged about 31 years,
Occupation : Business,
Resident of Main Road,
Wardha,
Tahsil and District Wardha ...APPELLANT
...V E R S U S...
Dattatraya Honaji Patil,
Aged about 58 years,
Occupation : Business,
Resident of Bank of India Colony,
Wardha, Tahsil & District Wardha ...RESPONDENT
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Mr. K.R. Lule, counsel for the Appellant.
Mr. Amol D. Patil, counsel for the Respondent.
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CORAM
:ROHIT B. DEO, J.
DATE :29.11.2017 ORAL JUDGMENT:
The appellant, who is the original complainant, is challenging the judgment and order dated 20.10.2011 in Summary Criminal Case 3296 of 2009, delivered by the Judicial Magistrate First Class, Wardha, by and under which, the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 2 respondent / accused is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short).
2 Heard Shri. K.R.Lule, the learned counsel for the appellant and Shri. Amit Patil, the learned counsel for the respondent.
3 The learned counsel for the complainant submits that the learned Magistrate has not appreciated that the presumption under section 139 of the Act is activated in view of the failure of the accused to dispute the signature on the cheque. The accused has not rebutted the presumption, is the submission. The learned counsel further submits that the statement of the accused which is recorded under section 313 of the Code of Criminal Procedure, is absolutely silent about the defence. The finding recorded by the learned Magistrate that the cheque was issued by the accused against future transaction, borders on perversity, is the submission.
4 Per contra, Shri. Amol Patil, the learned counsel for the accused would submit that the view taken by the learned ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 3 Magistrate is a possible view and is certainly not perverse. This Court ought not to interfere in the judgment of acquittal, in the absence of perversity, is the submission. 5 The complainant, who is examined as CW 1, the accused and the brother of the complainant Nirmal Balawani, who is examined as CW 2, were concededly co-owners of agricultural land, which the said owners sold to one Dhanraj Kale. It is not in dispute that although, the said land was sold to Dhanraj Kale, the standing trees were not sold and the ownership was retained by the complainant and Nirmal Balawani and the accused. 6 The accused is not disputing the signature on the cheque Exh. 25. However, the existence of liability is a contentious and contested issue.
7 The gist of the complaint is that the accused sold the standing trees to one Mr. Kesharwani for Rs. 6,48,000/-, the Complainant, CW 2 Nirmal and the accused were each entitled to Rs. 2,16,000/-, the share of the complainant was to be paid by the disputed cheque, which, however, was not honoured. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 4 8 The learned Magistrate was alive to the statutory presumption under section 118 and 139 of the Act. The learned Magistrate has held that the statutory presumption stand rebutted. It is trite law, that the statutory presumption can be rebutted by the accused on the basis of the material produced by the complainant or material elicited from the cross-examination of the witnesses examined on behalf of the complainant and it is not necessary that the accused must step into the witness box. The learned Magistrate has noted that the disputed cheque Exh. 25 dated 20.3.2009 was presented for encashment on 30.6.2009, which in the factual matrix, is itself a suspicious circumstance. The admission of CW 2 - Nirmal that he received the payment of Rs. 2,16,000/- in cash before 13.3.2009 is taken note of, by the learned Magistrate.
9 The learned Magistrate has appreciated the contents of document Exh. 32 which is communication dated 11.1.2010 addressed by the complainant Yogesh to the forest officer, the talathi and the tahsildar. Clause / paragraph 6 of the said letter is reproduced by the learned Magistrate in paragraph 13 and the said paragraph reads thus:-
^^R;kpizek.ks ,d Hkkxhnkj Jh- nRrk=; ikVhy g;kauk R;k 'ksrkojhy ykdwM QkVk fod.;kpk vf/kdkj fnyk ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 5 gksrk o R;kiksVh Jh- ikVhy ;kauh vkEgkl (Eg.kts Jh fueZy cyokuh o ;ksxs'k cyokuh) :- 2]16][email protected]& pk psd fnyk gksrk- lnj psd u oVfoY;k xsY;keqGs R;kaps fo:n/k o/kkZ U;k;ky;kr rdzkj dsl dz- [email protected] fnukad 27-8-2009 jksth nk[ky dsyh vlwu lnj rdzkj dsl U;k;izfo"B vkgs- djhrk ;k laca/kkr ykdqM QkV;kckcr Jh ikVhy ;kauk dks.krsgh dkxni= nsoq u;s-
The learned Magistrate has held that the contents of Exh. 32 would reveal that the cheque in question was issued in favour of the complainant and his brother Nirmal jointly. In the opinion of the learned Magistrate, the said clause demolishes the case of the complainant.
10 The learned Magistrate has further relied on the following admission of CW 2 in the cross-examination:-
^^gs [kjs vkgs dh] (fu- dz- 32 ) ojhy 6 O;k ifjPNsnkizek.ks Jh ikVhy ;kauk R;k 'ksrkojhy ykdqM QkVk fod.;kpk vf/kdkj fnyk gksrk o R;kiksVh Jh- ikVhy ;kauh vkEgkl Eg.kts Jh- ;ksxs'k cyokuh o fueZy cyokuh ;kauk :i;s 2]16][email protected]& pk psd fnyk gksrk-
11 The learned Magistrate has noted that the accused ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 6 examined the tahildar Umesh Bendre and range forest officer Ramsingh Chavan as defence witnesses and both of them deposed that the trees in survey 91/2 are still standing and are not cut. DW 1 Umesh Bendre has produced and proved spot inspection panchanama Exh. 34 which evidences the standing trees. The learned Magistrate has recorded a finding that the evidence of the defence witnesses would not ipso facto falsify the version that trees were sold since even standing trees could be sold. However, the learned Magistrate then proceeds to hold that on the basis of the evidence on record, it is not proved by the complainant that the trees were already sold when the cheque was issued. 12 Having given due consideration to the reasoning of the learned Magistrate, I do not see any perversity in the approach or the view taken. The learned Magistrate is right in noting that Mr. Kesharwani, who could have been the best witness to prove the allegation in the complaint, is not examined. The complainant did not make any attempt to examine Mr. Kesharwani. The inferences which have been drawn on the basis of Exh. 32 and the admission extracted in the cross-examination of CW 2, are possible inferences and I am not in a position to hold that the inferences drawn by the learned Magistrate could not ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 ::: apeal10of2012.odt 7 have been drawn at all. As is rightly contended by the learned counsel for the accused, a possible view is taken and it would not be appropriate for this Court to interfere in the judgment of acquittal since no compelling reason to do is demonstrated.
The appeal is sans merit and is rejected.
JUDGE RS Belkhede ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 02:04:49 :::