Vijay S/O Laxmanrao Golhar vs Gajanan S/O Nathuram Gabhane
2017 Latest Caselaw 8954 Bom

 apeal371.06.J.odt                         1




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

                     CRIMINAL APPEAL NO.371 OF 2006

          Vijay s/o Laxmanrao Golhar,
          Aged 59 years, Occ: Retired,
          R/o 9 SBI Colony, Sneh Nagar,
          Nagpur.                                            ....... APPELLANT

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

          Gajanan s/o Nathuram Gabhane,
          Aged 35 years, Occ: Business,
          R/o Balamwar's House, Ward No.39,
          Ganesh Colony, Sahakar Nagar Road,
          Ranapratap Nagar, Nagpur.                          ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri V.G. Wankhede, Advocate for Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:             22  nd  NOVEMBER, 2017.


 ORAL JUDGMENT



 1]               Exception is taken to the judgment and order dated

17.05.2006 passed by the 2nd Joint Civil Judge, Junior Division

and Judicial Magistrate First Class, 138 N.I. Act Special Court,

Nagpur in Summary Criminal Case 2682/2005, 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 (hereinafter referred to as "the

Act").

2] Heard Shri V.G. Wankhede, the learned counsel for

the appellant and none appears for the respondent-accused.

3] Shri V.G. Wankhede, the learned counsel for the

appellant (hereinafter referred to as "the complainant") submits

that the learned Magistrate committed a serious error of law in not

appreciating that the accused utterly failed to rebut the statutory

presumption under section 139 of the Act. He would submit, that

the signature on the disputed cheque Exh.25 is not disputed by the

accused. Shri V.G. Wankhede, fairly does not dispute that during

the pendency of the prosecution, the accused did pay the

complainant an amount of Rs.2,30,000/-. The learned counsel

further does not dispute that in the cross-examination the

complainant admits that he is insisting that the accused pay him

additional amount towards "expenses".

4] Since the appeal challenges the judgment of acquittal,

unless the view taken by the learned Magistrate is shown to be

perverse, this Court will not interfere and substitute its own view,

even if it is assumed that a second view is a possible.

5] CW 1 (complainant) admits that there was an

agreement to purchase land and that an amount of Rs.10,00,000/-

was paid by the complainant to the accused as earnest. It is further

the case of the complainant, that since the transaction did not

materialize, the agreement was terminated and towards refund of

the consideration of Rs.10,00,000/-, the accused issued two

cheques in favour of the complainant of Rs.5,00,000/-, the details

of which are noted on the agreement. The agreement is not

produced on record. The complainant however, admits that two

cheques of Rs.5,00,000/- each were issued by the accused.

The complainant further denies the suggestion that two cheques

were encashed. Be that as it may, the learned Magistrate was

justified, in taking note of the fact that the complainant

suppressed the issuance of these two cheques from the court.

6] The complainant approached the Court asserting that

out of Rs.10,00,000/- which the accused duty bound to refund,

the accused paid Rs.7,00,000/- and against the balance of

Rs.3,00,000/- the disputed cheque Exh.25 was issued. The learned

Magistrate has noted the suppression in the complaint and the fact

that the accused did pay Rs.2,30,000/- to the complainant during

the pendency of the complaint. The learned Magistrate has in

particular noted the following portion of the cross-examination:

"It is true to say that during pendency of this case out of the amount of Rs.3,00,000/- of cheque Exh.25, the accused has paid me the amount of Rs.2,30,000/-. It is true to say the even after receipt of Rs.2,30,000/- from the accused out of the cheque amount Exh.25, I am demanding some more amount from the accused, then the amount of cheque. Witness volunteers that he is claiming additional amount of expenses. It is not true to say that I am deposing false."

7] The finding of the learned Magistrate, that the

complainant failed to prove that the cheque was issued towards

discharge of existing liability, is a possible view and is certainly not

perverse. It is trite law that the accused need not step into the

witness box to prove the defence under section 139 of the Act.

The cumulative effect of the suppression, the admission that

despite the receipt of Rs.2,30,000/- during the pendency of the

complaint the complainant is demanding an "additional amount"

towards expenses, the failure and/or refusal of the complainant to

come clean on the agreement and to suppress the copy of the

agreement would be that the statutory presumption stands

rebuttal.

8] Since the view taken by the learned Magistrate is a

possible view, I do not see any compelling reason for this Court to

interfere in the judgment of acquittal.

  9]               The appeal is sans merit and is rejected.




                                                       JUDGE



NSN