Shri Ganesh Nagari Sahakari Pat ... vs Charudatta S/O Uttamrao Pande
2017 Latest Caselaw 8707 Bom

 apeal369of2010.odt                        1




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


                      CRIMINAL APPEAL  NO.369 O
                                                F 2010
                                                      


 Shri. Ganesh Nagari Sahakari Pat
 Sanstha Akola,
 Through its Authorized Signatory, 
 Anant Anil Sabde, 
 Aged : 31 years,
 Occupation : Service,
 R/o. Akola, Civil Line Branch,
 Branch situated at Shastri Nagar,
 Civil Line, Akola                                              ...APPELLANT


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


 Shri. Charudatta S/o. Uttamrao Pande,
 Adult., Occupation: Business,
 R/o. Behind Harisons Shop,
 Gupte Wadi, Gupte Plots,
 Jatharpeth, Akola, 
 Tahsil &  District Akola.                                   ...RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr. Ved Deshpande, counsel for the Appellant.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                        :  ROHIT B. DEO , J.      

DATE :15 . 1 1 . 2017

ORAL JUDGMENT:

Exception is taken to the judgment and order dated

4.8.2009 in Summary Criminal Case 5753 of 2007 delivered by

Judicial Magistrate First Class, Akola, by and under which, the

respondent is acquitted of offence punishable under section 138 of

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

Act").

2 The appellant (hereinafter referred to as "the

complainant") instituted complaint under section 138 read with

section 142 of the Act against the respondent (hereinafter referred

to as "the accused"), the gist of which is that the accused applied

for and was sanctioned loan of Rs. 50,000/- (Rupees Fifty

Thousand). The accused, towards repayment of the outstanding

loan issued cheque dated 5.7.2007 for Rs. 54,246/-, which was

drawn on State Bank of India, Krushi branch, Akola. The

complainant presented the said cheque for encashment, the

cheque was dishonoured for want of sufficient funds, the statutory

notice which was issued was not complied with and hence the

complainant instituted the complaint.

3 The defence of the accused, who has stepped into the

witness box, is that the loan was indeed applied for and

sanctioned, but then since no other security was obtained by the

complainant society, at the instance of the complainant, the

accused gave 9 cheques duly signed although blank in other

contents, as security. The accused states that while he is ready and

willing to pay the outstanding, at the relevant time, the amount of

Rs. 54,246/- which is according to the accused is written / filled in

by the bank on the disputed cheque, was not due and payable.

4 The learned Magistrate was alive to the statutory

presumption under section 139 of the Act. The learned Magistrate

has held that the statutory presumption stands rebutted. The

learned Magistrate has noted that the complainant did not

produce on record the accounts which would have thrown light on

the amount due and payable by the accused to the complainant at

the relevant time. The learned Magistrate has held that the

accused has probabilized the defence that signed cheques, with

amount column blank, were handed over as security. The Learned

Magistrate has further noted that even a simple arithmetical

calculation would reveal that as on the date of the cheque, an

amount of Rs. 54,246/- could not have been due and payable to

the complainant.

5 Shri. Ved Deshpande, the learned counsel for the

complainant submits that the judgment impugned is perverse. The

Learned Magistrate ought to have appreciated that since the loan

per se is not in dispute and nor is the signature on the disputed

cheque, the burden was entirely on the accused to rebut the

statutory presumption under section 139 of the Act. As a

proposition, the submission of Shri. Deshpande, does not call for

any demur. However, in the factual matrix, I do not see anything

wrong in the finding recorded that the presumption stands

rebutted.

6 The loan was sanctioned on 10.2.2006 and the first

installment was concededly due and payable on 1.3.2006, the

disputed cheque is dated 5.7.2007, the monthly installment was

Rs. 1700/- and the rate of interest was 15% as is obvious from the

promissory note Exh. 44. A mathematical calculation will reveal,

that if the entire loan was not recalled and only a part payment

was made, as on 2.7.2007, an amount of Rs. 54,246/- could not

have been due and payable. Be it noted, that neither the

complaint nor the notice nor the evidence of the complainant

asserts that the entire loan was recalled. Au contaire, it has come

on record that the cheque was issued towards part payment of

loan. Be that as it may, even if arguendo, it is assumed that the

entire loan was recalled, the figure of Rs. 54,246/- does not take

the case of the complainant any further. In the teeth of the failure

of the complainant to produce on record the accounts, I do not

find any perversity in the view taken by the learned Magistrate.

The view taken is a possible or plausible view and there is no

compelling reason for this Court to interfere with the judgment of

acquittal.

The appeal is sans merit and is dismissed.

JUDGE

RS Belkhede