Sh.Kishor Sunderlal Khurana S/O ... vs Sh.Devrao Kishnaji Take,S/O ...
2016 Latest Caselaw 5548 Bom

                                                                                                 CRI.APPEAL.512.02
                                                                 1




                                                                                                                   
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT NAGPUR, NAGPUR.
                                                 ...




                                                                                     
                                 CRIMINAL APPEAL NO. 512/2002

              Sh. Kishor Sunderlal Khurana




                                                                                    
              s/o  Sh. Sunderlal Khurana, 
              Aged about 40 years, occu: Business - 
              proprietor  M/s  Khurana Agencies, Pulgaon
              R/o Pulgaon, Wardha District.                                                        ..   APPELLANT 




                                                                    
                         v e r s u s

    1)        Sh. Devrao Kishnaji Take 
              s/o Sh. Kishanji Take 
                                         
              Aged about 59 years, occu: Agriculturist 
              R/o Rasulabad Tahsil, Arvi, Wardha District.
                                        
    2)         State of Maharashtra 
               Through P.S. Pulgaon, Dist.Wardha.                                        ...        RESPONDENTS
    ...........................................................................................................................
       

               Mr. R.R.Vyas, Advocate for  appellant 
               None for respondent no.1 (Advocate S.S. Joshi, absent )
    



               Shri M.M.Ekre,  Addl. Public Prosecutor for Respondent no.2 
    ............................................................................................................................

                                                                     CORAM: V.M. DESHPANDE, J.
                                                                     DATED :    23rd September,  2016





    JUDGMENT:  

1. The learned counsel for the appellant has assailed the judgment

passed by learned Judicial Magistrate, First Class, Pulgaon on 12.07.2002 in

Complaint Criminal Case No.1901/1998 acquitting the respondent for the

offence punishable under Section 138 of the Negotiable Instruments Act.

2. Heard Shri R.R. Vyas, the learned counsel for the appellant and

CRI.APPEAL.512.02

Shri M.M. Ekre, the learned Additional Public Prosecutor for respondent no.2.

Learned counsel for the respondent no.1 remained absent during the hearing.

3. A complaint was lodged by the appellant against the respondent

no.1 whereby it was alleged that the respondent no.1 has committed an

offence punishable u/s. 138 of the Negotiable Instruments Act.

4. According to the learned counsel for the appellant, the cheque

was issued in favour of the appellant by the respondent no.1 in discharge of

his legal liability, which was not honoured by his Banker and, therefore, the

respondent no.1 is liable for conviction.

5. There is no dispute that the respondent no.1 has made credit-

purchases from the appellant. The complaint is silent about the exact period

during which the credit transaction took place between the complainant and

the accused. Exhs. 32 to 36 are the receipts which show that certain amount

was paid by the accused to the complainant. According to the accused, a

blank cheque was given to the complainant by way of security, which he has

misused.

6. The complainant was under obligation to prove that the cheque

was issued by the accused in discharge of his legal liability. The disputed

CRI.APPEAL.512.02

cheque is at Exh. 19. According to the complainant, it is dated 22.10.1998.

The learned Judge of the Court below has rightly observed that there is

interpolation on the said cheque in respect of the year of the cheque.

Further, the complainant has not adduced any evidence either oral or

documentary in nature, to show that on 22.10.1998 i.e. the date of cheque,

an amount of Rs. 46,740/-or more was outstanding in the name of the

respondent no.1.

7.

As per the complainant, there used to be credit sale

transactions between him and the accused. On the basis of such stand taken

by the appellant, it will not be improper on the part of the Court to draw an

inference that the appellant must be maintaining record in that behalf.

Therefore, it was obligatory on the part of the appellant to produce such

record which would have substantiate the case of the appellant to show that

on the day which is appearing on the disputed cheque, such amount was

outstanding. In absence of the said, the defence of the respondent no.1 got

probabilized.

8. The learned Magistrate has considered the case in its correct

perspective warranting no interference at the hands of this Court. Hence, the

Appeal is dismissed.

JUDGE sahare

CRI.APPEAL.512.02

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