appa107.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.107 OF 2016
IN
CRIMINAL APPEAL NO. OF 2016
Jankalyan Nagri Sahkari Pat Sanstha,
Tumsar, Branch Sihora, through its
Manager Smt. Sanjivani Ravi Lanjewar,
Aged about 36 years, Occ: Service,
R/o Mehegaon, Tah. Tumsar,
District Bhandara. ....... APPELLANT
...V E R S U S...
1] Shri Vishnu s/o Dhasnu Gajam,
Aged 40 years, Occupation: Service,
R/o Chandpur, Tah. Tumsar,
District Bhandara.
Deleted as 2] State of Maharashtra,
per office
circular dt. through G.P., Nagpur. ....... RESPONDENTS
24.06.2015 -------------------------------------------------------------------------------------------
Shri K.S. Motwani, Advocate for Appellant.
Shri R.A. Gupte, Advocate for Respondent No.1.
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CORAM: ROHIT B. DEO, J.
DATE: th
10 OCTOBER, 2017.
ORAL JUDGMENT
1] Heard Shri K.S. Motwani, the learned Counsel for the
appellant and Shri R.A. Gupte, the learned Counsel for the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: appa107.16.J.odt 2 respondent 1.
2] The counsel for the appellant has placed on record statement of the accused under section 313 of the Cr.P.C. 3] With the assistance of the learned counsels, I have scrutinized the record.
4] The applicant is the original complainant in Summary Criminal Case 601/2013. By judgment and order dated 01.01.2016 the respondent (accused) is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881.
5] The gist of the complaint instituted by the complainant society is that a loan of Rs.2,00,000/- was extended to the accused on 28.10.2010.
6] The accused issued cheque bearing 007627 dated 30.03.2013 for Rs..2,12,265/- in favour of the complainant society.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: appa107.16.J.odt 3 7] The said cheque was dishonoured, statutory notice was issued and since the accused did not make the payment within the statutorily prescribed period, the complainant instituted complaint under section 138 of the Negotiable Instruments Act. 8] The defence of the accused is that he borrowed an amount of Rs.1,75,000/- and made repayment of Rs.1,50,000/-. Certain cheques which were blank although signed by the accused were handed over to the complainant as security at the time of availing of the loan.
9] The accused has stepped into the witness box to prove the defence.
10] The learned Court was alive to the legal position that it is the burden of the accused to dispel the statutory presumption under section 138 and 139 of the Negotiable Instruments Act. The learned Magistrate on a holistic appreciation of the evidence on record, has come to the conclusion that the statutory presumptions stand rebutted and the accused has probablized the defence on the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: appa107.16.J.odt 4 touchstone of preponderance of probabilities. 11] The evidence of the sole witness examined on behalf of the complainant would reveal that the amounts paid by the accused to the complainant society, in particular amounts referred to in receipts exhibits 40 to 51 are not reflected in the accounts of the society. The learned Trial Court has come to the conclusion that the complainant has not proved that the disputed cheque was issued towards existing liability.
12] I have given my anxious consideration to the record. It is apparent from a perusal of the judgment, that the view taken by the learned Magistrate is a possible view. The view is certainly not perverse. This Court will not interfere in a judgment of acquittal if two views could have been taken and the learned Magistrate takes a view which is favourable to the accused. 13] Perusal of exhibits 40 to 51 would reveal that various payments were made by the accused to the society. The amount covered by exhibits 40 to 51 is not reflected in loan account extract exhibit 35.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: appa107.16.J.odt 5 14] The learned Magistrate has appreciated the evidence on record and inter alia has taken note of the obvious doubt in the case of the complainant in view of the fact that the amounts covered by exhibits 40 to 51 are not factored in by the complainant.
15] I do not find any perversity in the judgment of the learned Magistrate and an eminently possible view is taken. This Court is not inclined to interfere with the judgment of acquittal, since the view is not perverse.
16] The appeal is dismissed.
JUDGE
NSN
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