apeal289.14.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.289 O
F 2014
Chhaganlal Tulshiram Rathi,
Aged about 53 years,
Occu: Service,
R/o Vinoba Bhave Nagar,
Tumsar, Tahsil Tumsar,
District Bhandara. ....... APPELLANT
...V E R S U S...
1] Sanjay s/o Ramchandra Thakur,
Aged 45 years, Occu: Business,
R/o Shriram Nagar, Tumsar,
Tahsil Tumsar, District Bhandra.
2] The State of Maharashtra through
Collector, Bhandara. ....... RESPONDENT S
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Shri A.M. Quazi, Advocate for Appellant.
Shri K.S. Motwani, Advocate for Respondent No.1.
Ms. T.H. Udeshi, APP for Respondent No.2/State.
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CORAM: ROHIT B. DEO , J.
DATE: th
30 NOVEMBER,
201
7 .
ORAL JUDGMENT
1] Exception is taken to the judgment and order dated
29.07.2013 in Summary Criminal Case 714/2006 delivered by the ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 2 Judicial Magistrate First Class, Tumsar, by and under which, respondent 1 (hereinafter referred to as "the accused" is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ('Act' for short).
2] Heard Shri A.M. Quazi, the learned counsel for the appellant, Shri K.S. Motwani, the learned counsel for the respondent 1 and Ms. T.H. Udeshi, the learned Additional Public Prosecutor for respondent 2/State.
3] The gist of the complaint instituted by the appellant (hereinafter referred to as "the complainant") is that he extended by hand loan of Rs.65,000/- in cash to the accused in March, 2005. The repayment of the hand loan was to be done in two months. The accused did not repay, the complainant pursued the issue and the accused handed over cheque dated 21.06.2006 for Rs.65,000/- to discharge the existing liability, to wit, repayment of the hand loan. According to the complainant, the hand loan was extended in view of the cordial relationship between the complainant and the accused.
::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 3 4] Concededly, the complainant was then serving as a Sectional Engineer with Public Works Department at Tumsar. The accused is concededly, a contractor. However, what is disputed by the complainant is that the accused executed a contract on behalf of one Harishankar Singh, who was awarded the contract of road repairs. This assumes some significance since the defence of the accused is that he handed over two blank cheques to the complainant, as security for the payment of the illegal gratification which was demanded by the complainant. The defence is that since the accused did not pay the illegal gratification as demanded by the complainant, one of the two cheques was misused. 5] Shri Quazi, the learned counsel for the complainant submits that the order of acquittal dangerously borders on perversity. The learned Magistrate was not alive to the statutory presumption under section 118(a) and 139 of the Act. The police report Exh.26, allegedly lodged by the accused, was after the receipt of the statutory notice and ought to have been discarded altogether, is the submission. According to the learned counsel for the complainant, the statutory presumptions which stood ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 4 activated, have not been rebutted by the accused. 6] Concededly, there is no documentary proof evidencing that the complainant extended hand loan of Rs.65,000/- in cash to the accused. The complainant is not in a position even to disclose the date on which the said hand loan is extended. The alleged hand loan is not reflected in the income tax returns. In any event, complainant did not produce on record the income tax returns. 7] Shri Quazi, the learned counsel for the complainant however, invited my attention to Exh.36 which purports to be a certificate signed by one Wasnik whose signature is identified by CW 3 Shri Radheshyam. Shri Quazi submits, that the said certificate dated 31.08.2006 would show that even in the past the complainant has extended financial assistance of Rs.10,000/- to the accused. I am afraid, certificate Exh.36 does not take the case of the complainant any further. It is one thing to say that the document is exhibited and another thing to say that the contents of the document are duly proved. The record on the basis of which Exh.36 is allegedly issued is not produced before the Court. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 5 Mr. Wasnik, the author of the certificate is not examined. C.W. 3 does not claim to have any personal knowledge or knowledge derived from official record that the contents of the certificate correct. All that C.W. 3 says is that since he was working with Mr. Wasnik, he is in a position to identify the signature. The certificate dated 31.08.2006 is exhibited on the basis of the said evidence. Be that as it may, the contents of the certificate have not been proved.
8] Ms. Udeshi, the learned A.P.P. would submit, that it is not sufficient for the appellant to demonstrate that a second view is possible. This Court, ought not to interfere in the judgment of acquittal unless the view taken is demonstrable perverse, is the submission. The learned A.P.P. is right in her submission that merely because this Court may have a second view, the judgment of acquittal ought not to be interfered with, if the view taken by the Magistrate is a possible or plausible view. 9] I have given my anxious consideration to the evidence on record and the conclusions drawn by the learned Magistrate on ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 6 the basis thereof. The learned Magistrate has held that the statutory presumptions have been rebutted by the accused. Be it noted, that the accused has stepped into the witness box as D.W. 1. One Mr. Selukar is examined as D.W. 2. One of the documents which have been produced and proved in the evidence of D.W. 2 is Exh.83 which is a letter addressed by the accused dated 18.12.2006 inter alia making a grievance that the bills in respect of the work allotted to Harishankar Singh are not settled. The significance of the said letter is that the accused has brought on record some connection or nexus with the work allotted to Harishankar Singh. It is not suggested to the accused that the said letter is a fabricated document or is written only create a record. The authenticity of the letter is not in doubt. The letter is produced by Mr. Selokar D.W .2 who is serving as Deputy Executive Engineer. The inference drawn by the learned Magistrate on the basis of the cross-examination of C.W.1 and the defence evidence is certainly not perverse. While there could be a second view, as is vehemently argued by Shri Quazi, I am not inclined to substitute the view of the learned Magistrate with another view, assuming that the second hypothesis suggested by ::: Uploaded on - 30/11/2017 ::: Downloaded on - 03/12/2017 01:27:57 ::: apeal289.14.J.odt 7 Shri Quazi is a possible hypothesis.
10] There is no compelling reason demonstrated for warranting interference in the judgment of acquittal.
11] The appeal is sans merit and is rejected.
JUDGE
NSN
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