Shri Kishor L. Purohit vs Shri Prem Saxena . And Anr
2016 Latest Caselaw 566 Bom

                                            1            CR.APPEAL.699/2000(204)

    mnm

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                    CRIMINAL APPELLATE JURISDICTION




                                                         
                           CRIMINAL APPEAL NO. 699 OF 2000

    Kishor L. Purohit
    carrying on his business at




                                                        
    25A-27, Super Bazar, Station Road,
    Santacruz (West), Mumbai-400 054.     ...Appellant/Orig.Complainant
           Vs.
    1. Prem Saxena




                                               
        Residing at 52A - 6/1, Jeevan Aradhana,
        LIC Colony, Borivali (West), Mumbai-400 103.
                                      
    2. The State of Maharashtra                  ...Respondents
                                     
    None for the Appellant 
    Mrs. Manisha Tidke, APP for the State, Respondent No.2

                                     CORAM : MR. S.B. SHUKRE, J.
         


                                      DATED   : 14TH MARCH, 2016
    JUDGMENT:

1. This is an appeal preferred against the judgment and order

dated 4th September, 1998 passed in Criminal Case No.

289/S/1995 by the Metropolitan Magistrate, 44th Court,

Andheri, Mumbai thereby acquitting the accused / respondent

No.1 of the offence punishable under Section 138 of the

Negotiable Instrument Act. Briefly stated, facts of the case are as

under:

2 CR.APPEAL.699/2000(204)

The appellant, the original complainant running a shop

under the name and style of M/s. Kalatmak, situated at Super

Bazar, Station Road, Santacruz (W), Mumbai advanced a hand

loan / friendly loan of Rs.3,40,000/- to the respondent No.1, to

enable the respondent to finance one company M/s. Kaveri

Pharmaceuticals Ltd., that the accused was intending to

promote. As a part of the repayment of the said friendly loan,

the accused issued a cheque dated 10th October, 1995 bearing

No.380241 for Rs.71,000/-, being the first installment of the

schedule of repayment to the complainant. This cheque was due

on 20th October, 1985 and it was deposited for collection of the

amount thereunder by the complainant with the United Bank of

India, Versova Branch, Mumbai on 9th November, 1995.

However, the cheque was dishonoured on 13th November, 1995

for the reason "funds insufficient". Inspite of receiving a notice

of return of dishonour of cheque and a demand made by the

complainant from the accused to pay the amount of the cheque,

the accused / respondent No.1 failed / neglected to meet the

said demand. Therefore, a complaint case for an offence

3 CR.APPEAL.699/2000(204)

punishable under Section 138 of Negotiable Instrument Act was

filed by the complainant against the accused.

After recording of the verification statement a charge for

an offence punishable under Section 138 of Negotiable

Instrument Act was framed to which the respondent No.1

pleaded not guilty and claimed to be tried. On merits of the

case, the learned Metropolitan Magistrate found that the

appellant failed to prove the case against the respondent for an

offence punishable under Section 138 of Negotiable Instrument

Act and therefore, by the judgment and order dated 4 th

September, 1998 acquitted the respondent of the same. Not

being satisfied with the same, the complainant ie., the appellant

is before this Court through this appeal.

2. This appeal is pending for final disposal for long period of

time. Record shows that the appellant has been absent on

several occasions in the past. Section 386 of the Code of

Criminal Procedure requires hearing to be given to the appellant

in an appeal as the present one only when the appellant is

4 CR.APPEAL.699/2000(204)

present before the Court. The appellant has chosen to remain

absent before the Court. Therefore, the provision of Section 386

of the Code of Criminal Procedure would require this Court to

proceed in this appeal in accordance with law, which this Court

is now doing.

3. If the appellant is absent before this Court, even the

respondent is not present. However, I have gone through the

record of the case including the impugned judgment and order. I

find that the view taken by the learned Magistrate in this case is

possible and cannot be said to be arbitrary or perverse. The

learned Magistrate has found that there are circumstances

available on record which reasonably indicate that a

businessman like the appellant would not advance a friendly

loan of Rs.3,40,000/- to a stranger like the respondent and that

too without there being any receipt obtained from the

respondent acknowledging the receipt of a friendly loan of

Rs.3,40,000/- by him. The learned Magistrate has found that

the evidence of the complainant that although the accused ie.,

respondent No.1 had issued a receipt to him, the original receipt

5 CR.APPEAL.699/2000(204)

was handed over back by him to the respondent, is not inspiring

any confidence. The learned Magistrate has observed that such

version of the complainant or the appellant is hard to be

believed as nobody would return such a conclusive and direct

proof on mere acceptance of confirmation letter which is also

not drafted happily. In these circumstances, I do not find any

perversity or arbitrariness in the learned Magistrate drawing a

conclusion that the basic requirement of the offence punishable

under Section 138 of the Negotiable Instrument Act that the

cheque must be issued in discharge of a legally enforceable

liability has not been proved beyond reasonable doubt. No

doubt, there is a presumption that a cheque is issued in

discharge of such a legally enforceable liability / debt, the facts

and circumstances appearing in the evidence of the prosecution

in this case go to show that the defence taken by the respondent

that the cheque was for some other transaction is probable and

therefore, one must say, the presumption has stood rebutted. I

am, therefore, of the opinion that no interference in the

impugned judgment and order is warranted and the appeal

deserves to be dismissed.

                                            6            CR.APPEAL.699/2000(204)




    4.            The Appeal is dismissed.  




                                                                                
                                                        
                                                          (S.B. SHUKRE, J.)