1 apeal279.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 279 OF 2016
Santaji Yuwak Bigar Sheti Credit
Co-operative Society Ltd., Narkhed,
Taluka - Narkhed, District - Nagpur,
through its Manager Shri Ashok s/o
Namdeoraoji Khante, Aged about 40
years, Occupation - Service,
R/o Narkhed, Taluka - Narkhed,
District - Nagpur. .... APPELLANT
VERSUS
Purushottam s/o Diwakarrao Armarkar,
Aged 55 years, Occ. - Business,
Proprietor of M/s. Vaibhav Cycle Store,
Narkhed, R/o Near Laxminarayan Mandir,
Shahar Vibhag, Narkhed, Taluka - Narkhed,
District - Nagpur. .... RESPONDENT
______________________________________________________________
Shri Y.N. Sonkusare, Advocate for the appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 12
OCTOBER, 2017
th
ORAL JUDGMENT :
The appellant, who is the original complainant, is aggrieved by the judgment and order dated 04-3-2016 in Summary ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:05 ::: 2 apeal279.16 Criminal Case 128/2013 delivered by the learned Judicial Magistrate First Class, Narkhed, by and under which the respondent (hereinafter referred to as the "accused") is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. I have heard Shri Y.N. Sonkusare, learned Counsel for the complainant. There is no appearance on behalf of the accused. However, Shri Y.N. Sonkusare, learned Counsel for the complainant has in all fairness invited my attention to the entire record including the material which is adverse to the complainant, as is expected of an officer of this Court.
3. The case of the complainant is that the disputed cheque dated 07-3-2013 for Rs.1,07,000/- was issued by the accused in favour of the complainant towards repayment of loan. It is the case of the complainant society that the accused was extended loan of Rs.30,000/- on 24-2-2000.
4. The record reveals that towards part payment of the said loan the accused had issued (This is the version of the complainant) cheque for Rs.14,000/-. The said cheque was dishonoured and the ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:05 ::: 3 apeal279.16 complainant instituted proceedings under Section 138 of the Negotiable Instruments Act, 1881 which came to be compromised in Lok-Adalat. The operative part of the award reads thus.
"1) In terms of compromise matter stands disposed of.
2) Accused is hereby acquitted from the offence punishable under section 138 of N.I. Act.
3) Bail bond of accused stand cancelled and surety discharged"
5. One of the terms of compromise records that although it is the contention of the complainant society that the accused did not issue any blank cheque, according to the accused, nine blank cheques are lying with the complainant society. The relevant term records that no cheque shall be utilized by the complainant unless a document of consent is recorded before the Tahsildar.
6. The learned Magistrate has recorded a finding in the judgment impugned, that in view of the terms of compromise recorded in the Lok-Adalat, the complainant could not have used the disputed cheque. The learned Magistrate noted that the accused entered the witness box and proved his defence that in view of the compromise deed, the blank cheque could not have been used by the complainant society.
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7. The finding recorded by the learned Magistrate that the accused had rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881, is unexceptionable. The initiation of proceedings is clearly contrary to the letter and spirit of the compromise which is proved on record. The view taken by the learned Magistrate is not only a possible view, it is the only view which could have been taken in the teeth of the evidence on record.
8. The appeal is sans merit and is rejected.
JUDGE adgokar ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 02:04:05 :::