Sheshnath S/O Rambachhan Singh vs Keshavrao S/O Rambhauji Gondane
2017 Latest Caselaw 8310 Bom

 apeal271of16.odt                          1




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


                     CRIMINAL APPEAL NO.271 OF 2016


 Shri. Sheshnath S/o. Rambachhan Singh,
 Aged 42 years, Occupation - Service,
 R/o. At post Saoner, Tahsil Saoner,
 District Nagpur
 Police Station Saoner,                                      .....APPELLANT


                  ...V E R S U S...


 Shri. Keshvrao S/o. Rambhauji gondane,
 Aged Major,
 Occupation Business,
 Proprietor Ram Agency, Gujarkhedi,
 Tahsil Saoner, District Nagpur
 Police Station Saoner,                                      ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Mrs. M.N. Hiwase, counsel for the Appellant.
          None for the Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                        ROHIT B. DEO, J. 

DATE:

NOVEMBER 01, 2017

ORAL JUDGMENT:

Exception is taken to judgment and order dated 10.7.2015

in Summary Criminal Case 99 of 2013 delivered by the Judicial

Magistrate First Class, Saoner, acquitting the respondent of

offence punishable under section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as the "Act" for

short). The appellant, who is the original complainant was

employed with Madhyadesh Paper Mill Limited, Malegaon, Tahsil

Saoner, District Nagpur. He contends that he was acquainted with

the accused through one Prem Ranjan Singh. The accused is the

proprietor of Ram Agency and is engaged in the business of petrol

pump located at mouza - Gujarkhede, Nagpur, Saoner Road.

2 The complaint instituted under section 138 of the Act

reveals that the case of the complainant was that the accused

alongwith Prem Ranjan Singh approached the complainant on

10.9.2012 seeking handloan of Rs. 2 lakhs. On the

recommendation of Prem Ranjan Singh, on 15.9.2012 the accused

handed over the amount of Rs. 2 lakhs in cash to the accused, in

the presence of Prem Ranjan Singh. The accused promised to

repay the said amount of Rs. 2 lakhs within two months. The

complainant demanded the refund and after two month the

accused issued cheque 185890 drawn on State Bank of India,

Saoner branch dated 15.11.2012 for Rs. 2 lakhs. The said cheque

was presented by the complainant to his banker, the cheque was

dis-honoured and since the statutory notice was not complied

with, complaint under section 138 of the Act was instituted.

3 The complainant has examined himself as CW 1. In

paragraph 2 of the examination in chief, he has deposed that on

10.9.2012 Prem Ranjan Singh and the accused approached the

complainant seeking loan of Rs. 2 lakhs for the accused. CW 1 has

further deposed that on 15.9.2012, he handed over Rs. 2 lakhs to

the accused through Prem Ranjan Singh in cash. In the cross-

examination, in paragraph 6, CW 1 admits that he did not have

any relation with accused. He further admits that he did not

personally hand over the amount to accused and that he handed

over the amount through Prem Ranjan Singh. CW 1 further

admits that the disputed cheque Exh. 40 was handed over to CW 1

by Prem Ranjan Singh and not by the accused. CW 1 has no

documentary or other proof save and accept his word and that of

Prem Ranjan Singh, to show that he extended loan of Rs. 2 lakhs

to the accused. CW 1 further admits that he has not disclosed the

loan of Rs. 2 lakhs in the income tax returns.

4 Prem Ranjan Singh is examined as CW 2. His version

is at stark variance with that of CW 1. He states that the accused

sought loan from him. CW 2 states that he was in possession of

amount taken on loan from the complainant and the same amount

was given to the accused with the consent of the complainant. CW

2 states that he informed the accused that the amount was of

CW 1.

5 The defence of the accused, as is discernible from the

trend of the cross-examination and the statement recorded under

section 313 of Criminal Procedure Code was that he had borrowed

some amount from one Gurubhai Singh resident of Hyderabad and

seven blank cheques were handed over to the said lender through

Prem Ranjan Singh. One of the cheques was misused, is the

defence.

6 Heard Smt. M.N. Hiwase, the learned counsel for the

appellant. None appears on behalf of the accused.

7 Smt. M.N. Hiwase, the learned counsel for the

appellant relied on the judgment of this Court reported in 2016

DGLS (Bom.) 1337 - Bharati Walia Vs. Krishnan Mamlal

Kapoor to contend that the statutory presumption under section

139 is not rebutted by the accused. I am afraid, I am not in a

position to agree.

8 The complainant, has not produced cogent material

on record that he was in a position to extend a handloan of Rs. 2

lakhs in cash to the accused. My attention is invited to an entry in

the bank account suggesting that Rs. 1,70,000/- was withdrawn

from the account of the complainant few day prior to the alleged

extension of loan. However, a perusal of the bank account reveals

that an amount of Rs. 1,88,000/- or thereabout was deposited in

the account of the complainant in close proximity of time. It is not

clear as to who has deposited the said amount in the account of

the complainant. Be that as it may, even according to the

complainant he did not have any relation to the accused and it is

admitted in the cross-examination that the disputed cheque Exh.

40 was handed over to him not by the accused but by Prem

Ranjan Singh. The learned Magistrate has noted that the version

of the complainant is extremely doubtful. The learned Magistrate

has recorded a finding of fact that the complainant has not proved

that he had the capacity to extend the loan to the accused. The

learned Magistrate has further observed that it is difficult to digest

that the entire life savings was handed over by the complainant to

the accused in cash and that too without any document recording

the loan transaction.

9 I do not find any perversity in reasoning of the

learned Magistrate. CW 2 - Prem Ranjan Singh is a transporter

with four trucks. The complainant, as is apparent from perusal of

the bank statements, appears to be a modest employee. It is

absolutely unbelievable that CW 2, a prosperous truck owner

would have amount taken on loan from the complainant. It is

equally difficult to believe that the prosperous transporter has

handed over the amount of the complainant to the accused. The

finding of the learned Magistrate that the complainant has failed

to prove the existence of legally enforcible debt or liability is a

possible view and is certainly not perverse. The judgment in

Bharati Walia Vs. Krishnan Mamlal Kapoor cited by the learned

counsel for the appellant Smt. M.N. Hiwase, does not take the case

of the appellant any further. The observations in the said

judgment are made in the context of the factual matrix of that

case.

10 The learned Magistrate was alive to the statutory

presumption under section 139 of the Act and has recorded a

finding that the accused has rebutted the presumption. I am

inclined to agree. It is not necessary that the accused should step

into the witness box to rebut the presumption. In the present case

presumption is rebutted in view of the material brought on record

in the cross-examination of the complainant and CW - 2 Prem

Ranjan Singh.

The appeal is without substance and is rejected.

Bail bond shall stand discharged.

Order accordingly.

JUDGE

RSBelkhede