Rahul Ramesh Dubewar vs Ritesh Purnaji @ Punjaji Patil
2017 Latest Caselaw 8306 Bom

                                     1                                        apeal614.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.614 OF 2006


 Rahul Ramesh Dubewar, 
 Aged about 30 years, 
 Occupation - Cultivation, 
 R/o Udasi Ward, Pusad,
 District Yavatmal.                                           ....       APPELLANT


                     VERSUS


 Ritesh Purnaji @ Punjaji Patil,
 Aged about 31 years, 
 R/o In front of the House of 
 Dr. Godbole, Old Locality Badnera,
 District Amravati.                                           ....       RESPONDENT

 ______________________________________________________________

  Ms. Rucha Pande, Advocate h/f. Shri Shantanu Ghate, Advocate for the
                              appellant, 
                       None for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 1 NOVEMBER, 2017.

st

ORAL JUDGMENT :

Challenge is to the judgment and order dated 05-9-2005 in

Summary Criminal Case 1177/2002, delivered by the learned Judicial

Magistrate First Class, Court 1, Pusad, acquitting the respondent-

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accused of offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as the "Act").

2. Heard Ms. Rucha Pande, learned Advocate holding for Shri

Shantanu Ghate for the appellant. None appears on behalf of the

respondent.

3. The gist of the complaint under Section 138 of the Act is

that in view of friendly relations between the complainant and the

accused, a hand loan of Rs.40,000/- was extended by the complainant

to the accused and towards refund thereof the accused issued cheque

452972 for Rs.40,000/- dated 27-6-2002 in favour of the complainant.

The said cheque was presented for encashment to the Yavatmal Urban

Co-operative Bank Limited, Pusad Branch on 27-6-2002, the said

cheque was dishonoured by the banker of the accused for want of

sufficient funds, a statutory notice was issued which was not complied

with by the accused, and the complainant instituted proceedings under

Section 138 of the Act.

4. The defence of the accused, as is discernible from the

trend of the cross-examination and the statement recorded under

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Section 313 of the Criminal Procedure Code is that he did not issue any

cheque in favour of the accused muchless towards discharge of liability.

The disputed cheque was stolen from the office of the accused to which

the complainant had free and unhindered access, is the defence.

5. The accused has examined D.W.1 Pandurang Bobade at

Exhibit 61. The accused has also stepped into the witness box to rebut

the statutory presumption under Section 139 of the Act. The accused

has proved that an application dated 28-5-2002 was addressed to his

banker to stop payment of the disputed cheque. This is proved by

producing on record extract of register maintained by the Punjab

National Bank recording applications of stop payment. The accused

has also proved reply sent to the complainant in response to the

statutory notice and the UPC receipt (Exhibit 71 and Exhibit 72

respectively). The receipt of the reply, is, however, denied by the

complainant.

6. The learned Magistrate has recorded a finding that the

accused has rebutted the statutory presumption and further a finding

that the complainant has not proved that the disputed cheque was

issued towards discharge of legal enforceable debt or liability. The

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learned Counsel Ms. Rucha Pande would submit that the said findings

are perverse.

7. The case of the complainant is that the accused issued

cheque dated 27-6-2002 towards refund of hand loan of Rs.40,000/-.

The complainant has not brought on record as to on which date/s the

amount of Rs.40,000/- was allegedly given to the accused as hand

loan. Be that as it may, since the accused has proved that the stop

payment instructions were issued to his banker on 28-5-2002, the

version of the complainant that the accused issued the disputed cheque

dated 27-6-2002 is extremely suspect, to say the least. The

complainant has no documentary proof of the loan transaction nor has

any independent witness been examined to substantiate the version of

the complainant that he extended hand loan of Rs.40,000/- in cash to

the accused. The learned Magistrate is justified in recording a finding

that the evidence of the complainant is not trust worthy. Be it noted,

that while in the statutory notice, in the complaint and in the

examination-in-chief, the version of the complainant is that

Rs.40,000/- was given to the accused as hand loan and the disputed

cheque was issued against refund of the said loan, in the cross-

examination of the accused, it is suggested that the accused handed

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over blank cheque as security since the entire investment in the

business of the accused is made by the complainant. The suggestions

given in the cross-examination of the accused ip so facto dent the

credibility of the evidence of the complainant.

8. There is no compelling reason for me to interfere with the

judgment of acquittal impugned. The view taken is a possible view and

is certainly not perverse.

9. The appeal is sans merit and is dismissed. Bail bond of the

accused shall stand discharged.

JUDGE adgokar