Ishwarsinh Ramsinh Pawar vs Warsha Dadarao Hiwrale & Anor
2017 Latest Caselaw 8978 Bom

                                         1                                     apeal699.08




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 699 OF 2008


 Ishwarsinh Ramsinh Pawar, 
 Aged about 61 years, 
 Occupation - Retired, 
 R/o Swagatam Colony, Gopal Nagar,
 (P.S. Rajapeth), Amravati.                                    ....       APPELLANT


                     VERSUS


 Smt. Warsha Dadarao Hiwrale,
 Aged about 38 years, 
 Occupation - Service, 
 R/o Bhartiya Colony, Chatyrapati 
 Talao Road, Amravati.                                         ....       RESPONDENT


 ______________________________________________________________

   Shri A.J. Mirza, Advocate h/f. Shri Masood Shareef, Advocate for the
                                 appellant, 
             Shri R.V. Shiralkar, Advocate for the respondent.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :      23
                                                NOVEMBER, 2017
                                             rd



 ORAL JUDGMENT : 

The challenge is to the judgment and order dated

30-6-2008 in Summary Criminal Case 6288/2005 delivered by the

learned Judicial Magistrate First Class, Court 6, Amravati, by and under

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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 A.J. Mirza, learned Advocate holding for Shri

Masood Shareef, Advocate for the appellant (hereinafter referred to as

the "complainant") and Shri R.V. Shiralkar, learned Advocate for the

accused.

3. Shri A.J. Mirza, learned Advocate submits that the findings

recorded by the learned Magistrate are unsustainable. The import and

implication of Section 139 of the Act is not appreciated correctly, is the

submission. The receipt (Exhibit 68) and the issuance of the disputed

cheque (Exhibit 67) cumulatively were sufficient to activate the

presumption under Section 139 of the Act, is the submission. Shri

A.J. Mirza, learned Advocate would then submit that the failure of the

accused to reply the statutory notice would also be a circumstance

against the accused.

4. Per contra, Shri R.V. Shiralkar, learned Advocate submits

that there is no perversity in either the approach or the findings

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recorded. The view taken by the learned Magistrate is a possible view

and in the absence of perversity, this Court ought not to interfere with

the judgment of acquittal, is the submission.

5. Shri R.V. Shiralkar, learned Advocate invites my attention

to the finding recorded by the learned Magistrate, which finding is

consistent with the evidence on record, that although the complainant,

who was working as a Talathi, is an income tax payee, the transaction

is not reflected in the income tax returns. It is not as if the amount of

Rs.2,00,000/- which according to the complainant was given to the

accused as loan, is a small amount. The period for which this amount

was lent is also not short. The submission of Shri R.V. Shiralkar,

learned Advocate is that since the amount advanced as hand loan was

not small and the period was not short, the fact that the transaction is

not disclosed in the income tax returns would be one circumstance

which would rebut the statutory presumption under Section 139 of the

Act.

6. Shri R.V. Shiralkar, learned Advocate would then submit,

that according to the complainant Rs.1,35,000/- was paid to the

accused by cheque and the balance amount of Rs.65,000/- was paid in

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cash. The complainant, however, did not bring on record any evidence

even to prove the payment of Rs.1,35,000/-, which being allegedly

payment by cheque, could have been easily proved by documentary

evidence. In rebuttal Shri A.J. Mirza, learned Advocate for the

complainant invites my attention to the receipt dated 24-7-2004

(Exhibit 68) and contends that in view of the fact that the amount of

loan is duly acknowledged by the accused nothing further was required

to be brought on record.

7. I have given my anxious consideration to the rival

submissions. Shri R.V. Shiralkar, learned Advocate is right in

contending that this Court ought not to interfere in a judgment of

acquittal unless the view taken borders on perversity. If the view taken

is a possible view, this Court will not substitute the said view by its own

view, assuming that two views are possible.

8. The learned Magistrate has not committed any glaring

error either of fact or in law in holding that the complainant has not

proved that the cheque was issued towards discharge of existing

liability. It is not as if the signature on the cheque was admittedly that

of the accused. The issuance of the cheque and the signature thereon

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was a contested and contentious issue. The fact that the complainant

did not produce on record, evidence which ought to have been easily

available to prove that Rs.1,35,000/- was paid to the accused by

cheque, is a circumstance which ipso facto is sufficient to rebut the

presumption. At any rate, the learned Magistrate was more than

justified in drawing an adverse inference against the complainant. The

fact that the complainant, who is a Government employee, did not

disclose the transaction in the income tax return although neither was

the amount small nor the period for repayment short, is another

circumstance against the complainant. The version of the complainant,

that he received Rs.5,00,000/- as earnest amount against a transaction

of sale of agricultural land, is not substantiated by any documentary

evidence. It is noted by the learned Magistrate that the complainant

has not produced on record any material to suggest that he owned

agricultural land muchless material to show that he received

Rs.5,00,000/- as earnest.

9. The appreciation of the effect of document Exhibit 68 by

the learned Magistrate cannot be seriously faulted. Concededly,

Exhibit 68 bears the signatures of two witnesses, none of whom have

been examined. The fact that the said document Exhibit 68 is

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exhibited in the evidence of the complainant, who has deposed that the

signature is that of the accused, does not take the case of the

complainant any further. It is trite law that exhibiting a document is

not a proof of the contents thereof. I do not find any perversity in the

appreciation of the said document by the learned Magistrate.

10. The learned Magistrate has also noted that serious

mistakes were committed by the complainant, one glaring mistake

being that instead of the number of cheque, the number of the bank

account is mentioned in the statutory notice and complaint. I do not

express any opinion on the weightage given by the learned Magistrate

to the inadvertent errors in mentioning the number of cheque.

However, I am inclined to agree with the observation of the learned

Magistrate that though the complainant moved application for

correcting certain errors, he chose to withdraw the same and permitted

the errors to be on record till the conclusion of the trial. Be that as it

may, as I have observed, I am not inclined to record any finding on the

weightage to be given to the inadvertent errors committed by the

complainant in mentioning the number of the cheque.

11. On a holistic appreciation of the evidence on record, I do

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not see any compelling reason to interfere in the judgment of acquittal.

The view taken by the learned Magistrate is a possible view and is

certainly not perverse. The appeal is sans merit and is dismissed.

JUDGE

adgokar