1 apeal586.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 586 OF 2014
Narayan Dilidas Sahu,
Aged about 55 years,
Occupation - Business,
R/o Masanganj, Near Chetandas
Bagicha, Amravati, Tahsil and
District Amravati. .... APPELLANT
VERSUS
M/s. Agrawal Construction,
Pro. Satyanarayan Balkishan Agrawal,
Aged about 60 years,
Occupation - Business,
R/o Jafarji Compound, Amravati,
Tahsil and District Amravati. .... RESPONDENT
______________________________________________________________
Shri S.N. Gaikwad, Advocate for the appellant,
Shri S. Ghatte, Advocate h/f. Shri Harode, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 12
OCTOBER, 2017
th
ORAL JUDGMENT :
The appellant is the original complainant who is aggrieved by the acquittal of the accused of offence punishable under Section 138 of the Negotiable Instruments Act, 1881, by and under the judgment ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:04 ::: 2 apeal586.14 dated 14-2-2012 in Summary Criminal Case 741/2007 delivered by learned Judicial Magistrate First Class, Court 5, Amravati
2. Heard Shri S.N. Gaikwad, learned Counsel for the appellant and Shri S. Ghatte, learned Counsel holding for Shri Harode, learned Counsel for the respondent.
3. The learned Counsel for the appellant (hereinafter referred to as the "complainant") submits that the judgment of acquittal militates against the material on record. He would submit that the learned Magistrate has been persuaded to hold that existing liability is not proved in view of a solitary and stray admission in the evidence that nothing was due and receivable from the accused. The learned Counsel would submit that the learned Magistrate ought to have holistically considered the evidence on record. He would further submit that the other reason given by the learned Magistrate to acquit the respondent (hereinafter referred to as the "accused") that the return memos are not proved, is equally erroneous. He invites my attention to the return memos on record and contends that the return memos are duly signed by the office of Dr. Panjabrao Deshmukh Urban Co-operative Bank Limited, City Branch, Amravati. He would further ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:04 ::: 3 apeal586.14 submit that since the return memos were signed by the officer of the bank, the complainant was entitled to the benefit of the presumption under Section 146 of the Negotiable Instruments Act, 1881.
4. Per contra, the learned Counsel for the accused submits that the learned Magistrate has recorded a finding of fact that nothing was due and payable by the accused to the complainant. The finding is on the basis of an admission given by the complainant during cross- examination. The learned Counsel for the accused would further submit that since the return memos do not have the official mark of the bank, the learned Magistrate has rightly recorded a finding that presumption under Section 146 of the Negotiable Instruments Act, 1881 was not available to the complainant. The learned Counsel for the accused would then submit that the learned Magistrate has taken a possible view. Since the view is not perverse, this Court ought not to interfere in the judgment of acquittal. I have given my anxious consideration to the submissions of the learned Counsel and the evidence on record.
5. The learned Counsel for the accused is right in contending that interference with the judgment of acquittal would be warranted ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:04 ::: 4 apeal586.14 only if the view taken is perverse. If a possible view is taken by the Court below, the appellate Court would not be justified in interfering in the judgment of acquittal.
6. The complainant claims to have deposited various amounts with the accused and deposits carrying interest of 1.5 percent per month. The details given by the complainant in paragraph 1 of the examination in chief are as follows :
"# 1]00][email protected]&] fnukad 07-10-2004] cWad vkWQ cMksnk&vejkorh cWsadsps psd dz267951] lqHkk"kpanz jkBh nyky ;ksps ekQZr-
#-50][email protected]&] fnukad 06-6-2005] cWd vkWQ cMksnk&vejkorh cWadsps psd dz-138376] #-25][email protected]& o psd d-212509] #-25][email protected]& ujflaxnkl jkBh nyky ;kaps ekQZr-
#-60][email protected]&] fnukad 20-11-2003] cWad vkWQ cMksnk&vejkorh cWadsps psd dz- 965045] lqHkk"kpanz jkBh nyky ;kaps ekQZr-
#-25][email protected]&] fnukad 28-06-2005] cWad vkWQ cMksnk&vejkorh cWsadsps psd dz-0278115] fjrs'k jkBh nyky ;kaps ekQZr] vls ,dw.k #- 2]35][email protected]& tek Bsoys gksrs-"
7. The complainant further claims that on the dates of the deposit, four cheques dated 09-1-2007 were issued by the accused. The complainant admits in the cross-examination that the cheques were issued as security.
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8. The learned Magistrate has noted in paragraphs 12 and 13 of the judgment impugned that the complainant has admitted that there was no outstanding against the accused and the balance-sheet is not filed since no outstanding is reflected in the balance-sheet. This finding is not shown to be contrary to record.
9. During the cross-examination of the complainant a specific suggestion was given by the accused that the disputed cheques were never presented to the banker of the accused. The complainant was aware of the defence of the accused that the cheques were not presented to the banker of the accused for encashment. However, no evidence is adduced by the complainant to prove the return memos. The learned Magistrate is right in holding that the presumption under Section 146 of the Negotiable Instruments Act, 1881 was not available to the complainant since the return memos did not have the official mark of the bank.
10. The view taken by the learned Magistrate that the return memos are not proved is consistent with the evidence on record.
11. On a holistic appreciation of evidence, I do not see any ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:04 ::: 6 apeal586.14 perversity in the judgment of acquittal.
12. The appeal is without substance and is rejected.
JUDGE adgokar ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:04 :::