Dr. Vishnu S/O Ramkisan Bachate vs Vinod S/O Dattatraya Katkar
2017 Latest Caselaw 8599 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 323 OF 2016


 Vishnu s/o Ramkisan Bachate, 
 Aged 55 years, Occ. - Medical 
 Practitioner, R/o Dongaon, Tahsil-
 Mehkar, District - Buldhana.                               ....       APPELLANT


                     VERSUS


 Vinod s/o Dattatraya Katkar, 
 Aged - Adult, Occ.-Business, 
 R/o through Yogeshwar Jewelers,
 Navamonda, Beside hospital of 
 Dr. Sakharkar, at Palam, Tahsil -
 Palam, District - Parbhani.

 Through Shrawani Beauty Parlor, 
 Bhagawan Nagar, Palam, Tahsil -
 Palam, District - Parbhani.                                ....       RESPONDENT


 ______________________________________________________________

            Shri V.G. Wankhede, Advocate for the appellant, 
          Shri R.G. Kavimandan, Advocate for the respondent.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :      10
                                                NOVEMBER, 2017
                                             th



 ORAL JUDGMENT : 

Exception is taken to the judgment of acquittal delivered

by the learned Judicial Magistrate First Class, Mehkar in Summary

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Criminal Case 243/2009 dated 30-9-2015, by and under which the

respondent is acquitted of offence punishable under Section 138 of the

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

2. The genesis of the prosecution lies in complaint dated

23-7-2009 preferred by the appellant (hereinafter referred to as the

"complainant") against the respondent (hereinafter referred to as the

"accused") under Section 138 of the Act, the gist of which is thus :

The complainant was resident of Dongaon, District

Buldhana and is a medical practitioner. The accused is engaged in

jewellery business under the name and style "Katkar Suvarna Kala

Kendra".

The accused was desirous of obtaining financial assistance

from the Chikhali Urban Co-operative Bank Limited, Branch Dongaon.

The inter se relationship between the complainant and the accused was

extremely close and affectionate. The accused requested the

complainant to guarantee the cash credit limit which the accused was

desirous of availing from the said bank. The complainant obliged and

guaranteed the said cash credit limit.

The accused was regular in operating the same cash credit

limit account for two years. The brother of the accused obtained a

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separate and independent cash credit limit and again the complainant

was a guarantor. The accused, however, defaulted in regularising the

account which led to the bank issuing notices for recovery against the

accused and the complainant guarantor.

The accused requested the complainant for financial

assistance of Rs.1,04,000/- to regularise the two cash credit accounts

and for business purpose. The complainant extended said amount to

the accused as hand loan which was to be refunded in two months.

The complainant demanded refund of the said amount

from time to time. Ultimately, the accused issued cheque 186207

dated 21-1-2009 for Rs.1,00,000/- and cheque 186207 dated

27-1-2009 for Rs.4000/-, drawn on Dongaon Branch of Chikhali Urban

Co-operative Bank Ltd. The aforesaid two cheques were presented for

payment and were dishonoured. The return memo bears the

endorsement 'account closed'.

The defence of the accused, as is discernible from the

trend of the cross-examination and the statement recorded under

Section 313 of the Criminal Procedure Code, is that blank cheque

which was given to the complainant when the complainant stood as

guarantor for the two cash credit limit accounts, is misused by the

complainant.

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 3.                The   complainant   examined   himself   as   C.W.1.     The

deposition is broadly consistent with the contents of the complaint. In

the cross-examination, it is brought on record that the accused is not

residing in village since 2008. This statement is of some significance.

According to the complainant, he extended the hand loan in 2007 and

it was only in 2009 that he obtained the disputed cheque from the

accused. The complainant states in the cross-examination that he paid

cash to the accused in the year 2007 to enable the accused to discharge

the liability of the cash credit loan. The complainant claims in the

cross-examination that the transaction of hand loan of Rs.1,04,000/- is

disclosed in the income tax return. However, C.W.1 admits that the

copy of the income tax return is not placed on record. C.W.1 also

admits difference in the signatures on disputed cheques Exhibit 27 and

Exhibit 278. He, however, denies the suggestion that the signature on

Exhibit 27 is not that of the accused. The complainant was subjected to

intense cross-examination as to the source of the amount given to the

accused as hand loan. The complainant states in the cross-examination

that he arranged the said amount of Rs.1,04,000/- from one

commission agent Arjun Bajad and handed over the same to the

accused. Arjun Bajad is not examined.

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4. The brother of the accused Vijay Katkar who also availed

financial assistance from the Chikhali Urban Co-operative Bank Limited

and for which the complainant stood as guarantor, is examined as

D.W.1. He has deposed that the complainant obtained two blank

cheques from him and the accused when the complainant stood as

guarantor for the cash credit limit accounts. In the cross-examination,

he denies the suggestion that the complainant extended hand loan of

Rs.1,04,000/- to the witness and his brother and claims that the

accused, to regularise the accounts, arranged the amount from his

relatives and self generated sources.

5. The learned Magistrate has recorded a finding of fact, that

the complainant did not prove that the cheque was issued against

discharge of existing liability. The learned Magistrate was alive to the

statutory presumption under Section 139 of the Act. The learned

Magistrate, after marshalling the evidence on record, has recorded a

finding of fact that the statutory presumption has been rebutted by the

accused.

6. The learned Magistrate has noted that there is no

documentary evidence placed on record to prove that the complainant

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extended the substantial amount of Rs.1,04,000/- to the accused and

his brother in cash as hand loan. Despite the claim of the complainant

that the transaction is reflected in the income tax returns, the income

tax returns are not produced before the Court. Arjun Bajad, from

whom the complainant claims to have arranged the amount, is not

examined. The learned Magistrate further noted in paragraph 10 of

the judgment impugned that the figure one on the date of the cheque is

erased. The difference of signature of the accused on cheques Exhibits

27 and 28 is admitted by the complainant. On a holistic appreciation

of evidence, the learned Magistrate has recorded a finding that the

presumption under Section 139 of the Act is rebutted and the

complainant has failed to prove that the cheque was issued towards

existing liability.

7. I have given my anxious consideration to the evidence on

record as marshelled by the learned Magistrate. The view taken by the

learned Magistrate is a possible or plausible view. The view is not

perverse. Having independently appreciated the evidence on record, I

am inclined to agree with the learned Magistrate that the defence is

probablised on the touchstone of preponderance of probabilities.

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8. I do not see any compelling reason to interfere with the

judgment of acquittal. The appeal is sans merit and is dismissed.

JUDGE

adgokar