Jadhavlal S/O Mavji Patel vs Lalit S/O Jasraj Bhai Patel
2017 Latest Caselaw 9023 Bom

 apeal607.08.J.odt                         1




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

                     CRIMINAL APPEAL NO.607 OF 2008

          Jadhavlal s/o Mavji Patel,
          Aged 40 years, Occupation: Business,
          Proprietor M/s Mavji Vishram Patel,
          R/o 220, Timber Market,
          Lakadganj, Nagpur.                   ....... APPELLANT

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

          Lalit s/o Jasraj Bhai Patel,
          Aged Major, Occupation: Business,
          Proprietor M/s Shriram Motors
          Pandhurna Road, Near Jain Motors,
          Warud, District Amravati.

          Nagpur Address
          Flat No.304, Gaurav Deluxe Apartment,
          Telephone Exchange Chowk,
          Lakadganj, Nagpur.                                 ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Lalit B. Patel, Advocate for Appellant.
          Shri S.V. Sirpurkar, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            24    NOVEMBER, 2017.


 ORAL JUDGMENT



 1]               The   appellant,   who   is   the   original   complainant,   is

aggrieved by the judgment and order dated 31.03.2008 in

Summary Criminal Case 4929/2005 passed by the 2 nd Joint Civil

Judge, Junior Division and Judicial Magistrate First Class, Special

Court 138 of N.I. Act, Nagpur, 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 L.B. Patel, the learned counsel for the

appellant and Shri S.V. Sirpurkar, the learned counsel for the

respondent.

3] The submission of the learned counsel for the

appellant, is that the accused has not rebutted the statutory

presumption under section 139 of the Act and that the finding of

the learned Magistrate that the cheque was not issued towards

discharge of existing legal liability, borders on perversity.

The learned counsel for the accused invites my attention to

answer to the question 6 in the statement recorded under section

313 of the Code of Criminal Procedure and contends that the

accused admits payment of Rs.5,49,437/-, which would suggest

that the said payment made between 07.08.2000 to 05.03.2001,

was towards partial payment of the goods purchased by the

accused. This submission is in the backdrop of the finding

recorded by the learned Magistrate that the complainant has not

proved that the goods (timber) against the payment of which the

disputed cheque is allegedly issued, were duly delivered to the

accused. The learned counsel for the accused further submitted

that the delivery of goods by the complainant to the accused is

held proved by the Civil Court.

4] Per contra, Shri Patel, the learned counsel for the

appellant submits that the learned Magistrate has taken a possible

view and in the absence of any perversity in appreciation of

evidence or in application of law, this Court ought not to interfere

in the judgment of acquittal.

5] The gist of the complaint under section 200 of the

Code of Criminal Procedure, 1973 read with section 138 and 142

of the Act, is thus:

The complainant is the Proprietor of M/s Mavji

Vishram Patel and is a timber merchant. The accused, was at the

relevant time, also engaged in timber business.

Between 24.07.2000 to 06.05.2001, the accused

purchased timber worth Rs.18,74,437/-. The accused paid

Rs.5,49,437/- on various dates between 26.12.2000 and

05.03.2001. At the end of financial year 2000-2001 amount of

Rs.13,25,000/- was outstanding against the accused. In the next

financial year, on 06.05.2001, the accused purchased timber

worth Rs.4,03,000/- on credit and the total amount outstanding

against the accused swelled to Rs.17,28,000/-.

The accused issued three cheques towards discharge

of the said existing liability, for Rs.7,00,000/-, 6,25,000/- and

4,03,000/- dated 07.05.2001, 12.05.2001 and 26.05.2001

respectively. The complaint relates to cheque 375133 for

Rs.4,03,000/-, which was dishonoured when the complainant

presented the cheque for encashment. The assertion in the

complaint is that the cheque was dishonoured for want of

sufficient funds in the account of the accused, statutory notice was

issued by registered post and under certificate of posting, the

notice is deemed to have been served on the accused, the accused

did not comply with the notice and the complainant was

constrained to set in motion proceedings under the act.

6] The defence of the accused, as is discernible from the

trend and tenor of the cross-examination and the defence

evidence is that the disputed cheque and the other two cheques

referred to by the complainant, were handed-over towards the

price of the timber to be supplied in future. The accused has

stepped into the witness box. The learned Magistrate has held that

although the defence of the accused is suspect, the statutory

presumption under section 139 of the Act is rebutted by bringing

on record material during the cross-examination of the

complainant, which material is sufficient to rebut the statutory

presumption under section 139 of the Act, on the touchstone of

preponderance of probabilities.

7] The complainant has examined himself, Jaiyash Joshi

CW 2, Ramkrishna Dharmik as CW 3 and Ramchandra Chaudhari

as CW 4 and in defence the accused examined himself as DW 1

and Sanjay Digde DW 2. In view of the findings recorded by the

learned Magistrate on the reason for return of the disputed

cheque and the service of the statutory notice, the only material

witnesses are the complainant and the accused. It would suffice, if

I have a relook at the evidence of the complainant and the

accused for the limited purpose of ascertaining whether the view

taken by the learned Magistrate is a possible or plausible view.

The learned counsel for the accused is more than justified in

contending that even if a second view is possible, this Court must

refrain from substituting its own view for the view taken by the

learned Magistrate unless the judgment impugned is demonstrably

perverse.

8] The examination-in-chief of the complainant is

broadly consistent with the contents of the complaint. In the

cross-examination, it is extracted that bills at Exh.37 to 43, which

according to the complainant evidence the sell of timber to the

accused, do not bear the signature of the accused.

The complainant further admits that the truck number mentioned

in the bills is of the truck which delivered the goods to the

complainant and not the truck which delivered the goods to the

accused. While the complainant initially states that no transit pass

is necessary within the limits of the Municipal Corporation, in the

same breath he claims to have given the transit pass to the

accused. It is admitted by the complainant that no document is

produced to demonstrate that goods referred to in Exh.37 to 43

were received by the complainant. Further admission is that

although accounts of business transactions are maintained, the

same are not produced on record. The complainant denies the

suggestion that the disputed cheque was issued towards advance

payment of the timber ordered by the accused.

9] The evidence of the accused is marshalled and

appreciated by the learned Magistrate inter alia in paragraphs 21

to 24 of the judgment impugned. Having done so, the learned

Magistrate has held that the statutory presumption cannot be held

to have been rebutted on the strength of the defence evidence.

However, the learned Magistrate has further held that in view of

admissions extracted in the cross-examination of the accused, and

the witness of the defence, the statutory presumption could still be

rebutted by the material produced on record by the complainant

himself and with the aid of material brought on record during the

cross-examination of the complainant. I do not find any serious

error in the approach of the learned Magistrate.

10] The learned Magistrate has recorded a finding of fact

that the defence is probablized in view of the admissions extracted

from the complainant, inter alia that no documentary proof of the

delivery of the goods is produced on record, that the relevant

accounts are not produced on record and that the basic particulars

like the mode of transportation or the registration number of the

vehicle etc. are not forthcoming, that the bills Exh.37 to 43 do not

bear the signature of the accused, that the complainant has not

produced on record any document to prove that the goods

referred to in Exh.37 to 43 were received by the complainant.

The view taken is a possible view and is certainly not perverse.

11] The learned counsel for the complainant strenuously

urged that the answer to question 6 in the statement recorded

under section 313 of the Code of Criminal Procedure proves that

the accused made the payment of Rs.5,49,437/- as part payment

of the total amount which according to the complainant is

outstanding against the accused, and that the said answer is

destructive of the defence and is ipso facto sufficient to prove that

the disputed cheque was issued to discharge existing liability or

debt. The submission is noted only for rejection. No such

inference, much less legal inference can be drawn from the

answer given in response to question 6 in the 313 statement.

The question 6 and the answer read thus:

Q6 It has further come in his evidence that you paid an amount of Rs.5,49,437/- to the complainant and Rs.17,28,000/- is outstanding against you. What you have to say ?

Ans I had one earlier transaction for which I had paid amount Rs.5 - 5 lakhs. There is nothing outstanding claimed. I did not purchase goods as per bills submitted.

12] All that the accused states in response to question 6 is

that the payment of Rs.5,49,437/- relates to an earlier transaction.

13] On a holistic consideration of the judgment

impugned, there is no compelling reason demonstrated for this to

interfere in the judgment of acquittal.

  14]              The appeal is sans merit and is rejected.




                                                   JUDGE



NSN