Bombay High Court

Vinod Suryabhan Gujar vs Dipak Nandlal Zanwar on 2 November, 2017

Bench: R. B. Deo

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 7 OF 2016


 Vinod Suryabhan Gujar, 
 Aged about 30 years, 
 Occupation - Agriculturist, 
 R/o Bhagwan Mahaveer Marg, 
 Akot, Tq. Akot, District Akola                                  ....       APPELLANT


                     VERSUS


 Dipak Nandlal Zanwar,
 Aged about 36 years, 
 Occupation - Proprietor Poonam 
 Ginning Factory, Wadai Satwai,
 R/o. Bada Alawa, Akot, Tq. Akot,
 District Akola.                                                 ....       RESPONDENT

 ______________________________________________________________

              Shri V.B. Bhise, Advocate for the appellant, 
                        None for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 2 nd NOVEMBER, 2017.

ORAL JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 13-7-2015 in Summary Criminal Case 760/2011, delivered by

the learned Judicial Magistrate First Class, Akot, acquitting the

respondent of offence punishable under Section 138 of the Negotiable

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

2. Heard Shri V.B. Bhise, learned Counsel for the appellant.

None appears for the respondent.

3. The genesis of the appeal is in the complaint under Section

138 of the Act instituted by the appellant (hereinafter referred to as the

"complainant") inter alia alleging that on 06-4-2011 the complainant

sold 32 quintal cotton to the accused who owns "Poonam Ginning

Factory" for Rs.2,03,616/-, the accused issued cheque 6956794 for

Rs.2,03,616/-, drawn on Akola Janata Commercial Bank Limited, Akot

Branch dated 25-4-2011 towards discharge of the said liability, the said

cheque was presented for encashment and the said cheque was

dishonoured. It is further alleged in the complaint that the accused

contacted the complainant on 11-6-2011 with an offer to make part

payment, which offer the complainant did not accept. The complainant

deposited the said cheque again on 12-10-2011, again the said cheque

was dishonoured, a statutory notice was sent to the accused which was

not complied with and hence the complainant set in motion

proceedings under the Act. The complainant examined himself as

C.W.1. The evidence is broadly consistent with the averments in the

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complaint. In the cross-examination, the attention of the complainant

was drawn to bill Exhibit 48 issued by the accused which purports to

record a transaction of sale of cotton by the complainant to the

accused. Exhibit 48 bears an endorsement "paid". The explanation of

the complainant is that the said endorsement on Exhibit 48 was made

by the accused after handing over the disputed cheque.

C.W.1 admits that he is not in a position to state as to by

which vehicle or through which driver the cotton was delivered to the

accused. The complainant further admits that the amount mentioned

in the disputed cheque Exhibit 42 cannot be reconciled with the

amount recorded in Exhibit 48. It is brought out in the cross-

examination of the complainant that the disputed cheque came into the

possession of the complainant only on 25-6-2011 and that prior to the

said date he was not in possession of any cheque issued by the accused.

The attention of the complainant is invited to

endorsement/writing on the reverse of the disputed cheque Exhibit 42.

It is recorded on the reverse of the disputed cheque Exhibit 42 that out

of the amount of Rs.2,03,616/- amount of Rs.50,616/- is paid and the

balance is Rs.1,53,000/-. The explanation of the complainant is that

the said writing is that of the accused. A suggestion is given to the

complainant that he is engaged in illegal money lending, which

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suggestion is denied. The complainant, however, admits that the

accused is a respected and prosperous person with substantial property

in Akot.

4. The learned Magistrate has recorded a finding that the

complainant has not proved that the disputed cheque was issued by the

accused muchless towards discharge of existing debt or liability. The

relevant observations of the learned Magistrate are to be found inter

alia in paragraphs 21, 22 and 24 of the impugned judgment, which

read thus :

"21- fQ;kZnhus R;kP;k iqjkO;ke/;s ueqn dsys vkgs dh] R;kus vkjksihyk 32 fDoaVy dkiql #-6][email protected]& izfr fdyks ;k njkus fodys gksrs- fQ;kZnhus tj vkjksihyk 32 fDoaVy dkiql #- 6][email protected]& izfr fdyks izek.ks fodyk gksrk rj R;kph ,dw.k fdaer #-2]16][email protected]& ,o<h gks.ks xjtsps gksrs- ek= vkjksihus R;kyk #-2]03][email protected]& pk /kukns'k usedk d'kklkBh fnyk] ;kckcr la'k; fuekZ.k gksrks- R;keqGs vkjksihus fQ;kZnhyk fodysyk 32 fDoaVy dkiql #-6][email protected]& njkus ;s.kkjh jDde gh /kukns'kkrhy jDdesckcr tqGr ukgh- vkjksihus gs ekU; dsys vkgs dh] R;kus fodysY;k 32 fDoaVy dkilkph jDde o fu-48 ojhy ique ftfuax QWDVªhP;k ikoR;kaojhy jDde gh ,desdka'kh tqGr ukgh- R;keqGs vkjksihus fQ;kZnhyk 32

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fDoaVy dkilkP;k jDdesckcr lnjpk /kukns'k fnyk gksrk ;kckcr la'k; fuekZ.k gksrks-

22- fQ;kZnhus nk[ky dsysY;k fu-42 ojhy /kukns'kkps voyksdu dsys vlrk vls fun'kZukl ;srs dh] R;koj fn- 11-6-2011 jksth jDde #-2]03][email protected]& otk #-50][email protected]& = #-1]53][email protected]& ^ckdh jgs* vls fyghysys vkgs- fQ;kZnhus R;kP;k myVriklke/;s gs ekU; dsys vkgs dh] lnj ckc vkjksihus fn-11-6-2011 jksth fyghysyh vkgs- ek= fQ;kZnhus R;kP;k myVriklke/;s gs ekU; dsys vkgs dh] lnjpk /kukns'k R;kP;kdMs fn-25-6-2011 jksth vkyk- R;kvk/kh vkjksihpk dks.krkgh /kukns'k R;kP;kdMs uOgrk- rlsp fQ;kZnhus R;kP;k iqjkO;kr vls lkafxrys vkgs dh] vkjksihus R;kyk fn-25-4-2011 jksth lnjpk /kukns'k fnyk gksrk- ek= fQ;kZnhus R;kP;k vkjksihrQsZ ?ks.;kr vkysY;k myVriklke/;s lkafxrys dh] vkjksihus R;kyk /kukns'k fu-42 gk fn- 25-6-2011 jksth fnyk gksrk o R;kvk/kh vkjksihus R;kyk dks.krkgh /kukns'k fnyk uOgrk- ;ko#u vls Li"V gksrs dh] vkjksihus fQ;kZnhyk fn-25-4-2011 jksth /kukns'k fnyk uOgrk- ek= /kukns'k fu-42 ps voyksdu dsys vlrk lnj /kukns'k gk fnukad 25-4-2011 jksthPkk vlY;kps fnlwu ;srs- R;keqGs vkjksphus fu-42 fQ;kZnhyk fnY;kckcr la'k; fuekZ.k gksrks-

24- vkjksihP;k odhykauh iq<s vlk ;qfDrokn dsyk dh] fQ;kZnhus R;kP;k iqjkO;ke/;s lkafxrysyk rFkkdfFkr O;ogkj

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gk fn-06-04-2011 jksthpk nk[koysyk vkgs- ijarq vkjksihus fQ;kZnhyk fn--25-04-2011 jksthpk /kukns'k fnyk gh ckc iV.;ktksxh okVr ukgh dkj.k O;ogkjkuarj rCcy 19 fnol fQ;kZnhus vkjksihyk fodysY;k ekykps iSls dk ekfxrys ukghr] ;kckcr dqBsgh [kqyklk dsysyk ukgh- fQ;kZnhP;k iqjkO;kps voyksdu dsys vlrk gs Li"V gksrs dh] fQ;kZnhus vkjksih lkscr R;kpk dkiql fod.;kpk O;ogkj fn-06-04-2011 jksth >kY;kps lkafxrysys vkgs- ek= vkjksihus R;kyk 19 fnolk uarj Eg.ktsp fn-25-4-2011 jksth R;k O;ogkjkcnn~ypk /kukns'k dk fnyk] ;kckcr R;kP;k iqjkO;ke/;s dksBsgh mYys[k dsyk ukgh- R;keqGs lq/nk fQ;kZnhP;k iqjkO;koj la'k; fuekZ.k gksrks"

5. The learned Magistrate has appreciated the evidence on

record holistically. I have given my anxious consideration to the

evidence on record and to the findings recorded by the learned

Magistrate. I have no hesitation in holding that the view taken by the

learned Magistrate is not only a possible view, but is the only view

which could have been taken in the teeth of the evidence on record. At

any rate and in any event, the view taken by the learned Magistrate is

not perverse.

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6. The complainant failed to establish that the amount

covered by the disputed cheque was due and payable by the accused

muchless towards purchase of cotton. The complainant has inter alia