Kashinath Narayanrao Bodkhe vs Vinod Ramdas Nemale
2017 Latest Caselaw 9253 Bom

                                      1                                     apeal670.08




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 670 OF 2008



 Kashinath Narayanrao Bodkhe,
 Aged about 57 years, 
 Occupation - Labour, 
 R/o Anjangaon Surji, District 
 Amravati.                                                  ....       APPELLANT


                     VERSUS


 Vinod Ramdas Nemale, 
 Aged about 35 years, 
 Occupation - Labour, 
 R/o Anjangaon Surji, District-
 Amravati.                                                  ....       RESPONDENT

 ______________________________________________________________

             Shri S.S. Shingne, Advocate for the appellant,
             Shri P.V. Thakre, Advocate for the respondent.
  ______________________________________________________________

                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 07-11-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 04-12-2017

 JUDGMENT : 

The appellant, who is the original complainant, is assailing

the judgment and order dated 01-7-2008 in Criminal Appeal 20/2006

delivered by the learned Ad hoc Additional Sessions Judge, Achalpur,

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by and under which the judgment and order dated 06-6-2006 in

Criminal Case 390/2005 passed by the learned Judicial Magistrate First

Class, Anjangaon Surji is reversed and the respondent (original

accused) is acquitted of offence punishable under Section 138 of the

Negotiable Instrument Act, 1881 ("Act" for short).

2. The gist of the complaint under Section 138 of the Act, is

that the accused was in need of Rs.95,000/-. The complainant who

was a friend of the accused, extended a hand loan in cash to the

accused on 07-4-2005, towards repayment of the said hand loan, the

accused on the same day i.e. 07-4-2005 handed over cheque 895266 to

the complainant, which was presented for encashment on 13-4-2005.

The cheque was dishonoured, the statutory notice was not complied

with, although the accused did reply, and the complainant was

constrained to institute the complaint under Section 138 of the Act.

3. The learned Magistrate was pleased to convict the accused

inter alia recording a finding that the accused did not rebut the

statutory presumptions under Sections 118 and 139 of the Act. The

appellate Court has, however, held that the statutory presumptions are

amply rebutted.

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4. I have scrutinized the evidence on record closely, since the

judgment of conviction is reversed by the appellate Court holding that

the statutory presumptions stand rebutted.

5. The complainant has admitted in his cross-examination

that on 02-4-2005 there was an altercation between his son and the

accused and the bone of contention was an amount of Rs.95,000/-.

The complainant further admits that the altercation was in the

presence of Suresh Yeul and Ramnath Aswar. The accused has brought

on record that pursuant to the said altercation a report was lodged at

the police station against the son of the complainant which was treated

as non-cognizable.

6. The extension of hand loan in cash which the complainant

says was extended to the accused on 07-4-2005, is an unbelievable

version. The learned appellate Court has rightly held that on the

backdrop of the admitted altercation between the son of the

complainant and the accused on 02-4-2005, it is not probable that five

days thereafter the complainant will extend hand loan of Rs.95,000/-

in cash to the accused, and that too due to friendly relations.

Concededly, there is no documentary proof produced on record

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evidencing the extension of hand loan of Rs.95,000/- in cash. It is

further admitted by the complainant, that the altercation which took

place on 02-4-2005 was on the issues of an amount of Rs.95,000/-,

although the details of the said altercation are blurred. It is also noted

by the learned Sessions Judge that the complainant has admitted that

he did not have an amount of Rs.95,000/- in the bank account on the

relevant date. The inference which is drawn by the learned Sessions

Judge, on an overall appreciation of the material on record, is that the

complainant has not shown that he could have lent an amount of

Rs.95,000/- to the accused and further that it is quite improbable that

such an amount would be lent to the accused five days after the

altercation. The learned Sessions Judge has also noted that the

accused and his cousin lodged a complaint against the complainant

alleging illegal money lending and investigation was carried out by the

police.

7. It is brought on record, in the cross-examination of the

complainant and in defence evidence that the accused was engaged in

business of herbal products. It is admitted by the complainant that the

complainant used to produce pipri in 5 to 6 acres of agricultural land.

Although the suggestion that the complainant and the accused were in

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partnership, is denied, it is admitted by the complainant that the

accused did meet him in Delhi once or twice and that although the

complainant did not visit Delhi often, sometimes the complainant used

to depute his son. This admission is extracted in the backdrop of the

earlier admission that the accused always used to go to Delhi or

Mumbai for business.

8. The further suggestion given to the complainant is that a

quarrel took place on the issue of the account of the business profits

and blank cheque was misused by the complainant by filling up the

date and contents. The suggestion is denied by the complainant. The

complainant also denies the suggestion that the cheque was issued on

05-5-2001 in relation to the transaction of sale of pipri.

9. The appreciation of the evidence on record, by the learned

appellate Court, is unexceptionable. The view taken by the learned

appellate Court while reversing the judgment of conviction is more

than possible or plausible. The version of the complainant that despite

the altercation between the son of the complainant and the accused, a

hand loan in cash was extended to the accused, is not believable.

There is no documentary evidence produced on record to corroborate

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the version of the complainant. The defence is more than probablised

on the touchstone of preponderance of probabilities. It would be

unsafe and hazardous for this Court to interfere with the judgment of

acquittal in the teeth of the evidence on record which would suggest

that the version of the complainant of having extended a hand loan to

the accused is extremely suspect.

10. The conclusion of the appellate Court that it is not proved

that the disputed cheque was issued to discharge existing liability, is

not only a possible or plausible conclusion, but is the only conclusion

which could have been reached on the face of the evidence on record.

In any event, the conclusion is not perverse. No compelling case is

made out for this Court to interfere in the reversing judgment of

acquittal.

11. The appeal is sans merit and is dismissed.

JUDGE adgokar