Bombay High Court
Sau.Dhanwanti W/O Motiramji ... vs Sudharam T.Rajpal And Another on 23 August, 2017
Bench: R. B. Deo
apeal386.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.386 OF 2002
Sau. Dhanwanti w/o Motiramji Ahuja,
Aged about 38 years,
R/o Rampur Camp, Amravati,
District Amravati. ....... APPELLANT
...V E R S U S...
1] Sudharam T. Rajpal,
Aged about 40 years,
R/o Rampuri Camp, Amravati,
District Amravati.
2] State of Maharashtra. ....... RESPONDENTS
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Shri N.R. Saboo, Advocate for Appellant.
None for Respondent No.1.
Shri H.R. Dhumale, APP for Respondent No.2/State.
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CORAM: ROHIT B. DEO, J.
DATE: rd
23 AUGUST, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order
dated 18.03.2002 in Summary Criminal Case 193/2000 delivered
by Judicial Magistrate, First Class Court No.3, Amravati by and
under which the respondent is acquitted of the offence punishable
under section 138 of the Negotiable Instruments Act, 1881.
2] Heard Shri N.R. Saboo, the learned counsel for the
appellant. None appears for the respondent 1. Shri H.R. Dhumale,
the learned Additional Public Prosecutor for respondent 2/State.
3] When the matter was called out, there was no
appearance on behalf of the respondent 1/accused before the trial
court. The learned Additional Public Prosecutor was therefore,
requested to assist the Court and has fairly and ably invited the
attention of the Court to the relevant evidence relying on which
the finding of acquittal is recorded by the learned Magistrate.
4] The learned counsel for the appellant would urge that
the learned Magistrate has committed a serious error of law in not
appreciating that the accused did not discharge the burden of
rebutting the statutory presumption under section 118 (a) and
139 of the Negotiable Instruments Act, 1881 (herein after referred
to as the "Act").
5] The learned counsel would urge that admittedly, the
cheque was dishonoured in view of instructions issued by the
accused to stop the payment. The learned counsel for the
appellant would further urge, that the defence of the accused as is
evident from the trend and tenor of the cross-examination is that
the complainant visited the house of the accused and walked away
with the blank cheque, is inherently incredible and even otherwise
the accused has not brought on record any material what so ever
to probabilise the defence.
6] In the absence of the counsel for the respondent 1
who is acquitted by the learned Magistrate, Shri Dhumale, the
learned A.P.P. invites my attention to Exh.34 which is a document
proved during the evidence of the Bank Officer (P.W.2) examined
on behalf of the complainant. The said document is proved on
admission, in the cross-examination. The Exh.34 would show that
an intimation dated 21.06.1999 was given by the accused to the
Bank about lost of cheque 206480 and to stop payment on the
basis thereof. The learned Magistrate has inter alia relied on the
said document Exh.34 to hold that in the teeth of the intimation
given in June, 1999 it would be difficult to accept the version of
the complainant that the said cheque was issued in her favour on
18.01.2000.
7] Having given my anxious consideration to the
material on record and the reasoning of the learned Magistrate, I
am not in a position to hold that the judgment of acquittal is
perverse. The view taken by the learned Magistrate is a plausible
or possible view and no interference by this Court is therefore,
necessary. The appeal is rejected.
JUDGE
NSN
