1 apeal473.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 473 OF 2006
M/s Krushna Associates,
through Jitendra Krushnarao Patil
(Prop.), Aged about 30 years,
Occupation - Business,
R/o Kamunja, District Amravati. .... APPELLANT
VERSUS
1) The State of Maharashtra,
through.
2) Vinod Pundlikrao Vatane,
R/o Pimplod, Tq. Daryapur,
District - Amravati. .... RESPONDENTS
______________________________________________________________
Shri D.G. Patil, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for respondent No.1,
Shri S.D. Dharaskar, Advocate for respondent No.2.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 4 OCTOBER, 2017.
th ORAL JUDGMENT :
Exception is taken to the judgment and order dated 08-09-2005 in Summary Criminal Case No.2487/2002, delivered by the learned Judicial Magistrate First Class, Court No.3, Amravati, ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:28 ::: 2 apeal473.06 acquitting respondent 2 of offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard Shri D.G. Patil, learned Advocate for the appellant, Shri A.V. Palshikar, learned Additional Public Prosecutor for respondent 1 and Shri S.D. Dharaskar, learned Advocate for respondent 2.
3. Shri D.G. Patil, learned Advocate for the appellant (hereinafter referred to as the "complainant") submits that the judgment of acquittal and in particular the finding recorded that the disputed cheque was not issued by respondent 2 (hereinafter referred to as the "accused") towards discharge of existing liability, is against the weight of evidence. He would submit, that concededly, the accused was holding a nokarnama under the provisions of the Maharashtra Prohibition Act and the Maharashtra Country Liquor Rules, 1973 and under the said authority was managing the entire affairs of the liquor business of the licence holder Laxman Kadtaji Patil. The learned Advocate submits that it is irrefutable from the evidence on record that the accused placed indent for country liquor and pursuant to the indent placed by the accused, the complainant ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:28 ::: 3 apeal473.06 delivered the goods. Shri Patil would submit that the accused has not rebutted the presumption under Sections 118(a) and Section 139 of the Negotiable Instruments Act, 1881 and the defence that the cheque in dispute was stolen from the shop has not been probablised even on the touchstone of the preponderance of probability.
4. The learned Counsel for the accused would submit that the finding recorded by the learned Magistrate that the disputed cheque could not have been issued towards discharge of legally enforceable debt or existing liability is unexceptionable. The accused is admittedly not the owner of the liquor business and even if it is assumed that he was in charge of the business under the authority of the nokarnama, the accused cannot be held liable to discharge or settle the liability towards payment for the liquor supplied by the distributor, is the submission. The learned Advocate for the accused would further submit that the judgment is not perverse and since a possible view is taken, this Court ought not to interfere with the judgment of acquittal.
5. The defence of the accused is that he issued the cheque to the brother of the complainant and the amount was Rs.587/- only. The defence is that digit '166' fraudulently written before the digit ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:28 ::: 4 apeal473.06 '587'. A police complaint is lodged with the Yeoda Police Station and charge-sheet is also filed by the police against the accused. The learned Advocate for the complainant states that the brother of the complainant is acquitted of the charge.
6. The learned Magistrate has recorded a finding of fact inter alia in paragraph 6 of the judgment that even if it is assumed that the cheque was issued for Rs.166587/- as is contended by the complainant, since the accused was admittedly a mere servant, he cannot be fastened with the liability to make the payment of the liquor supplied to his employer. The finding recorded in paragraph 6 of the judgment impugned is certainly not perverse and the view taken by the learned Magistrate is not only a possible view, is the only view which could have been taken in the teeth of the evidence on record.
7. The learned Magistrate has also recorded a finding that the defence that the amount mentioned in the cheque came to be altered/manipulated, has substance. However, even de hors the aforesaid finding, the judgment impugned does not suffer from any infirmity muchless perversity.
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8. I do not see any substance in the appeal. The appeal is rejected. Bail bond of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 04/10/2017 ::: Downloaded on - 07/10/2017 01:53:28 :::