Rameshchandra Bhawarilal Ladhha vs Shaligram Shankarlal Agrawal And ...
2017 Latest Caselaw 8634 Bom

 apeal556of04.odt                          1




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


                    CRIMINAL APPEAL NO. 556 OF 2004


 Rameshchandra Bhawarilal Ladhha,
 aged about 52 years, Occ. Business,
 R/o. Lalbahadur Colony, Risod Road,
 lakhala, Washim, 
 Tahsil & District Washim
       ...APPELLANT


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


 1        Shaligram Shankarlal Agrawal,
          aged about 60 years, Occ. Businessman,
          R/o. Janki Nagar, Risod Road,
          Lakhala Washim, 
          Tahsil & District Washim

 2        State of Maharashtra,
          Through Police Station, Washim,
          Tahsil District Washim                                     ...RESPONDENT

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          Mr. S.S. Deshpande, counsel for the Appellant.
          Mr. C.A. Joshi, counsel for the Respondent 1.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                        ROHIT B. DEO, J. 

DATE:

NOVEMBER 13, 2017

ORAL JUDGMENT:

Exception is taken to the judgment of acquittal

delivered by Judicial Magistrate First Class, Washim in Criminal

Case 832 of 2002 dated 7.7.2004, by and under which the

respondent (hereinafter referred to as "the accused) is acquitted of

offence punishable under section 138 of the Negotiable

Instruments Act, 1881 ("Act" for short).

2 Heard Shri. S.S. Deshpande, the learned counsel for

the appellant and Shri. C.A. Joshi, the learned counsel for the

respondent / accused.

3 The learned counsel Shri S.S. Deshpande, submits

that the judgment of acquittal borders on perversity. He does not

have any demur with the proposition of law that unless the view

taken by the Court is demonstrably perverse, the appellate Court

ought not to interfere in the judgment of acquittal. However, Shri.

S.S. Deshpande relying on the judgment in T. VASANTKUMAR

..VS.. VIJAYAKUMARI, reported in (2015) 8 SUPREME COURT

CASES 378 and in particular paragraph 10 thereof which is

reproduced below, would submit that since the judgment of

acquittal is based substantially on the finding that the disputed

cheque was from the cheque book issued in the year 1995, linking

thereof to the transaction of the year 2001, renders the misuse

thereof a real possibility, the judgment is perverse.

Paragraph 10:-

"Further, the High Court relied heavily on the printed date on the cheque. However, we are of the view that that by itself, in the absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20.5.2006 (sic 16-1.2007). The accused in her evidence brought out nothing to prove the debt of 1999 nor disprove the loan taken in 2006".

4 Per contra, Shri C.A. Joshi, the learned counsel for the

accused would support the judgment of conviction and submit that

the marshaling of evidence by the learned Magistrate is

unexceptionable.

5 Shri. S.S. Deshpande, the learned counsel for the

appellant (hereinafter referred to as "the complainant) would

further invite my attention to question 6 put to the accused in the

statement recorded under section 313 of the Code of Criminal

Procedure and answer thereto and would contend that in view of

the answer given to question 6, the accused has admitted that he

received the amount of Rs. 85,000/- and that the burden to

demonstrate that the said amount is repaid was on the accused

which he did not discharge. The submission is noted only for the

rejection. The answer to question 6 cannot be broken down and

read in the manner suggested by the learned counsel. Concededly,

it is the case of the complainant that he advanced loans to the

accused or made investments in the business of the accused on

multiple occasions. The answer by the accused in the statement

recorded under section 313 of the Code of Criminal Procedure that

he has paid all the loans cannot be construed as an admission that

he received Rs. 85,000/- which is the amount covered by the

disputed cheque.

6 I have given my anxious consideration to the evidence

on record, the submissions canvased by the learned counsel for the

appellant and the findings recorded by the learned Magistrate. I

am not persuaded to agree with the submission of Shri S.S.

Deshpande, the learned counsel for the appellant, that the view

taken by the learned Magistrate is not a possible or plausible view.

7 The learned Magistrate has recorded a finding of fact

that neither in the complaint nor in the statutory notice is a

disclosure made as to on which date, month or year the

investment is made by the complainant with the accused.

Although, the learned Magistrate does not appear to have

addressed the issue, I have noted from the evidence that the

investment of Rs. 85,000/- allegedly made in the year 2001, is not

disclosed in the income tax return, and at any rate, the income tax

returns are not produced on record. In the absence of averments

in the complaint and axiomatically the proof, it is not possible to

hold that the investment was made refundable within a short

period. In this view of the matter, the failure of the complainant

to disclose the investment or loan in the income tax returns would

be one circumstance for the Court to hold that the presumption

under section 139 of the Act stands rebutted.

8 The learned Magistrate has inter-alia observed thus in

paragraphs 8 and 9 of the judgment:

Paragraph 8:-

"It is the fact that the presumption u/s. 139 of N.I. Act is rebutable. It is the duty of the complainant to mention specific date on which he paid the amount to the accused but this fact is nowhere mentioned by complainant in the complaint, verification, notice or in his evidence. Said cheque is of the year 1995. The complainant has

submitted in his cross-examination that he paid the amount to the accused on 6.5.2001. I found no reason why any person kept old cheque with him from the year 1995 in order to give the same when he has new cheque-book. IN this case the accused has new cheque-book with him and he issued cheque No. 632 and disputed cheque is of the year 1995, which is from cheque-book exh-43. This fact is established by the accused by adducing evidence. Considering conduct of complainant and facts on record, it appears that the complainant may take advantage of old cheque which was may be issued in the year 1995 for the transaction in between them, as counter-foil cheque book exh.-43 and evidence of complainant shows that there was transaction in between them of money since 1995".

Paragraph 9:-

"In absence of specific date of payment of amount and cheque is of the year 1995 leads me to opine that the complainant may take advantage of old signed cheque with him for the transaction of money for the year 1995 and thereby he taken the advantage of it and came with this case. In such circumstances, the presumption u/s. 139 of N.I. Act is rebuted. Therefore, i hold that the complainant has failed to establish the fact that the accused issued a cheque for payment of Rs. 85,000/- as

alleged by him dated 30.11.2001 for the payment of liability. Therefore, considering all these facts i hold that the accused is entitled for benefit of doubt and therefore, i answered this question in negative and proceed to pass the following order".

9 The learned Magistrate on a holistic appreciation of

evidence on record, has come to a conclusion that the complainant

failed to establish that the cheque was issued against existing

liability and that the presumption under section 139 of the Act is

rebutted.

10 The observations of the Hon'ble Supreme Court in

T. VASANTKUMAR ..VS.. VIJAYAKUMARI on which Shri S.S.

Deshpande places reliance, can not be read de-hors of the fact or

in isolation. In the factual matrix, the Hon'ble Supreme Court was

considering the reversal by the High Court of the concurrent

finding recorded by the learned Magistrate and the learned

Sessions Judge. The Hon'ble Supreme Court took note of the fact

that the accused issued 'stop payment' instruction. The implication

thereof is considered in paragraph 9 by the Hon'ble Supreme Court

thus:

Paragraph 9:-

"Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with the story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was topped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence".

The observations in paragraph 10 on which the learned

counsel Shri S.S. Deshpande relies, can not be understood as

laying down that the fact that the cheque was a part of the cheque

book issued years prior to the incident, is of no significance. Be it

noted, that in the teeth of evidence, the learned Magistrate has

found it difficult to accept the very transaction of amount of

Rs. 85,000/- was being advanced or invested in the year 2001. I

do not see any perversity either in the approach of the Magistrate

or in the conclusions recorded in the judgment of acquittal.

The appeal is sans merit and is rejected.

JUDGE

RS Belkhede