Yogesh Wadhumal Balwani vs Dattatray Honaji Patil
2017 Latest Caselaw 9146 Bom

 apeal10of2012.odt                         1




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


                      CRIMINAL APPEAL NO.10 OF 2012


 Yogesh Wadhumal Balani,
 Aged about 31 years,
 Occupation : Business,
 Resident of Main Road,
 Wardha, 
 Tahsil and District Wardha                                             ...APPELLANT


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


 Dattatraya Honaji Patil,
 Aged about 58 years,
 Occupation : Business,
 Resident of Bank of India Colony,
 Wardha, Tahsil & District Wardha                                    ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Mr. K.R. Lule, counsel for the Appellant.
          Mr. Amol D. Patil, counsel for the Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J. 

DATE :29.11.2017

ORAL JUDGMENT:

The appellant, who is the original complainant, is

challenging the judgment and order dated 20.10.2011 in

Summary Criminal Case 3296 of 2009, delivered by the Judicial

Magistrate First Class, Wardha, by and under which, the

respondent / accused is acquitted of offence punishable under

section 138 of the Negotiable Instruments Act, 1881 ("Act" for

short).

2 Heard Shri. K.R.Lule, the learned counsel for the

appellant and Shri. Amit Patil, the learned counsel for the

respondent.

3 The learned counsel for the complainant submits that

the learned Magistrate has not appreciated that the presumption

under section 139 of the Act is activated in view of the failure of

the accused to dispute the signature on the cheque. The accused

has not rebutted the presumption, is the submission. The learned

counsel further submits that the statement of the accused which is

recorded under section 313 of the Code of Criminal Procedure, is

absolutely silent about the defence. The finding recorded by the

learned Magistrate that the cheque was issued by the accused

against future transaction, borders on perversity, is the

submission.

4 Per contra, Shri. Amol Patil, the learned counsel for

the accused would submit that the view taken by the learned

Magistrate is a possible view and is certainly not perverse. This

Court ought not to interfere in the judgment of acquittal, in the

absence of perversity, is the submission.

5 The complainant, who is examined as CW 1, the

accused and the brother of the complainant Nirmal Balawani, who

is examined as CW 2, were concededly co-owners of agricultural

land, which the said owners sold to one Dhanraj Kale. It is not in

dispute that although, the said land was sold to Dhanraj Kale, the

standing trees were not sold and the ownership was retained by

the complainant and Nirmal Balawani and the accused.

6 The accused is not disputing the signature on the

cheque Exh. 25. However, the existence of liability is a

contentious and contested issue.

7 The gist of the complaint is that the accused sold the

standing trees to one Mr. Kesharwani for Rs. 6,48,000/-, the

Complainant, CW 2 Nirmal and the accused were each entitled to

Rs. 2,16,000/-, the share of the complainant was to be paid by the

disputed cheque, which, however, was not honoured.

8 The learned Magistrate was alive to the statutory

presumption under section 118 and 139 of the Act. The learned

Magistrate has held that the statutory presumption stand rebutted.

It is trite law, that the statutory presumption can be rebutted by

the accused on the basis of the material produced by the

complainant or material elicited from the cross-examination of the

witnesses examined on behalf of the complainant and it is not

necessary that the accused must step into the witness box. The

learned Magistrate has noted that the disputed cheque Exh. 25

dated 20.3.2009 was presented for encashment on 30.6.2009,

which in the factual matrix, is itself a suspicious circumstance.

The admission of CW 2 - Nirmal that he received the payment of

Rs. 2,16,000/- in cash before 13.3.2009 is taken note of, by the

learned Magistrate.

9 The learned Magistrate has appreciated the contents

of document Exh. 32 which is communication dated 11.1.2010

addressed by the complainant Yogesh to the forest officer, the

talathi and the tahsildar. Clause / paragraph 6 of the said letter is

reproduced by the learned Magistrate in paragraph 13 and the

said paragraph reads thus:-

^^R;kpizek.ks ,d Hkkxhnkj Jh- nRrk=; ikVhy g;kauk R;k 'ksrkojhy ykdwM QkVk fod.;kpk vf/kdkj fnyk

gksrk o R;kiksVh Jh- ikVhy ;kauh vkEgkl (Eg.kts Jh fueZy cyokuh o ;ksxs'k cyokuh) :- 2]16][email protected]& pk psd fnyk gksrk- lnj psd u oVfoY;k xsY;keqGs R;kaps fo:n/k o/kkZ U;k;ky;kr rdzkj dsl dz- [email protected] fnukad 27-8-2009 jksth nk[ky dsyh vlwu lnj rdzkj dsl U;k;izfo"B vkgs- djhrk ;k laca/kkr ykdqM QkV;kckcr Jh ikVhy ;kauk dks.krsgh dkxni= nsoq u;s-

The learned Magistrate has held that the contents of Exh. 32

would reveal that the cheque in question was issued in favour of

the complainant and his brother Nirmal jointly. In the opinion of

the learned Magistrate, the said clause demolishes the case of the

complainant.

10 The learned Magistrate has further relied on the

following admission of CW 2 in the cross-examination:-

^^gs [kjs vkgs dh] (fu- dz- 32 ) ojhy 6 O;k ifjPNsnkizek.ks Jh

ikVhy ;kauk R;k 'ksrkojhy ykdqM QkVk fod.;kpk vf/kdkj fnyk

gksrk o R;kiksVh Jh- ikVhy ;kauh vkEgkl Eg.kts Jh- ;ksxs'k

cyokuh o fueZy cyokuh ;kauk :i;s 2]16][email protected]& pk psd

fnyk gksrk-

11 The learned Magistrate has noted that the accused

examined the tahildar Umesh Bendre and range forest officer

Ramsingh Chavan as defence witnesses and both of them deposed

that the trees in survey 91/2 are still standing and are not cut.

DW 1 Umesh Bendre has produced and proved spot inspection

panchanama Exh. 34 which evidences the standing trees. The

learned Magistrate has recorded a finding that the evidence of the

defence witnesses would not ipso facto falsify the version that trees

were sold since even standing trees could be sold. However, the

learned Magistrate then proceeds to hold that on the basis of the

evidence on record, it is not proved by the complainant that the

trees were already sold when the cheque was issued.

12 Having given due consideration to the reasoning of

the learned Magistrate, I do not see any perversity in the approach

or the view taken. The learned Magistrate is right in noting that

Mr. Kesharwani, who could have been the best witness to prove

the allegation in the complaint, is not examined. The complainant

did not make any attempt to examine Mr. Kesharwani. The

inferences which have been drawn on the basis of Exh. 32 and the

admission extracted in the cross-examination of CW 2, are

possible inferences and I am not in a position to hold that

the inferences drawn by the learned Magistrate could not

have been drawn at all. As is rightly contended by the learned

counsel for the accused, a possible view is taken and it would not

be appropriate for this Court to interfere in the judgment of

acquittal since no compelling reason to do is demonstrated.

The appeal is sans merit and is rejected.

JUDGE

RS Belkhede