Shri. Rajesh S/O. Sulchand ... vs Shri. Sunil S/O. Wasudeo Ramteke
2017 Latest Caselaw 8846 Bom

                                         1                                  apeal386.16




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 386 OF 2016


 Shri Rajesh s/o Sulchand Lanjewar,
 Aged about 45 years, 
 Occupation - Retired, 
 R/o Deepak Nagar, Near Maitri Colony,
 Plot No.117, Nari Road, Nagpur-440026.                     ....       APPELLANT


                     VERSUS


 Shri Sunil s/o Wasudeo Ramteke,
 Aged - Major, 
 Occupation - Business, 
 R/o Plot No.145, Maitric Colony, 
 Nari Road, Nagpur -440016.                                 ....       RESPONDENT


 ______________________________________________________________

              Shri R.R. Vyas, Advocate for the appellant, 
             Shri O.D. Kakde, Advocate for the respondent.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :      20
                                                NOVEMBER, 2017
                                             th



 ORAL JUDGMENT : 

Exception is taken to the judgment and order of acquittal

dated 25-1-2016 in Summary Criminal Case 24026/2014 delivered by

the learned 6th Judicial Magistrate First Class and Special Court for the

offence punishable under Section 138 of the Negotiable Instruments

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

2. Heard Shri R.R. Vyas, learned Advocate for the appellant

(hereinafter referred to as the "complainant") and Shri O.D. Kakde,

learned Advocate for the respondent (hereinafter referred to as the

"accused").

3. Shri R.R. Vyas, learned Advocate has two fold submissions

to make in assailing the judgment and order of acquittal.

4. Shri R.R. Vyas, learned Advocate would submit that the

learned Magistrate has committed a serious error in law in not

appreciating the import and implication of the statutory presumption of

Section 139 of the Act. He would further submit that the statutory

presumption is activated no sooner than the accused does not dispute

the signature on the cheque and a defence is not probablised, as is

wrongly held, by the learned Magistrate only by bringing on record

inconsistencies between the inter se stands of the complainant. The

accused ought to have adduced positive evidence to rebut the

presumption to probablise the defence on the touchstone of

preponderance of probabilities, is the submission.

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5. The second submission that the learned Magistrate has

committed a serious error of law in attaching more importance than

was warranted to the purported inconsistencies between the stand

taken in the statutory notice and the complaint and in the evidence

before the Court. Shri R.R. Vyas, learned Advocate would contend,

that if the evidence is considered holistically, the stands were not so

inconsistent as to dent the credibility thereof.

6. Per contra, Shri O.D. Kakde, learned Advocate for the

accused would submit that the learned Magistrate committed no error

in holding that the statutory presumption stands rebutted. He would

contend that the defence is more than probablised through the

admissions extracted during the cross-examination and it was not

necessary for the accused to step into the witness box.

7. The gist of the complaint instituted by the complainant is

that he is a retired military personnel and the accused induced the

complainant to hand over Rs.12,02,000/- and further induced the

mother of the complainant to hand over Rs.3,00,000/- on the

assurance that the brother and sister of the complainant will be

employed in the hospital to be constructed in Uppalwadi Area of

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Nagpur. The assertion in paragraph 3 of the complaint is that due to

the water supply business of the accused, he has excellent relations

with the officers of the Nagpur Municipal Corporation. The insinuation

upon a holistic reading of the complaint, is that the money was given

by the complainant to the accused since employment with Nagpur

Municipal Corporation Hospital was promised.

8. The complainant examined himself and it is extracted in

the cross-examination that the complainant has not produced any

documentary proof that he received Rs.22,00,000/- to Rs.23,00,000/-

as retirement benefits. The complainant was not in a position to

produce any document to prove that he extended the amount to the

accused. The complainant was further in no position to show that he

withdrew any particular amount from the bank account muchless the

huge amount which according to him was paid to the accused. It is

suggested to the complainant that he as a fact extended a loan to the

brother of the accused. The complaint under Section 138 of the Act is

an extension of the said dispute was the suggestion, which the

complainant has denied. However, the complainant admits that he has

instituted prosecution against the accused and his brother, which

prosecution appears to be an independent and separate prosecution for

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offence punishable under the Indian Penal Code. The attention of the

complainant is invited to Exhibit 35 which is copy of the first

information report, a perusal of which would reveal that the

complainant has indeed taken mutually inconsistent or destructive

stands.

9. The submission of the learned Counsel that the burden of

proof is shifted on the complainant or that the learned Magistrate has

erroneously held that the presumption under Section 139 of the Act is

rebutted, is noted only for rejection. The learned Magistrate was alive

to the statutory presumption under Section 139 of the Act. The finding

of fact recorded by the learned Magistrate that the complainant utterly

failed to demonstrate that the disputed cheques were issued towards

discharge of existing liability, is unexceptionable. The admissions in

the cross-examination clearly falsify the case of the complainant and it

was not necessary for the accused to step into the witness box or to

adduce any other evidence.

10. The learned Counsel for the accused is further justified in

contending that the view taken by the learned Magistrate is a possible

view and is certainly not perverse.

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11. I see no compelling reason to interfere in the judgment

and order of acquittal. The appeal is sans merit and is rejected.

JUDGE

adgokar