Chhaganlal Tulshiram Rathi vs Sanjay S/O Ramchandra Thakur And ...
2017 Latest Caselaw 9197 Bom

 apeal289.14.J.odt                         1




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

                      CRIMINAL APPEAL  NO.289 O
                                                F 2014
                                                      

          Chhaganlal Tulshiram Rathi,
          Aged about 53 years, 
          Occu: Service,
          R/o Vinoba Bhave Nagar,
          Tumsar, Tahsil Tumsar,
          District Bhandara.                                 ....... APPELLANT

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

 1]       Sanjay s/o Ramchandra Thakur,
          Aged 45 years, Occu: Business,
          R/o Shriram Nagar, Tumsar,
          Tahsil Tumsar, District Bhandra.

 2]       The State of Maharashtra through
          Collector, Bhandara.                               .......  RESPONDENT S          
 -------------------------------------------------------------------------------------------
          Shri A.M. Quazi, Advocate for Appellant.
          Shri K.S. Motwani, Advocate for Respondent No.1.
          Ms. T.H. Udeshi, APP for Respondent No.2/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO , J.

          DATE:                th
                            30    NOVEMBER,

                                               7  . 


 ORAL JUDGMENT



 1]               Exception is taken to the judgment and order dated 

29.07.2013 in Summary Criminal Case 714/2006 delivered by the

Judicial Magistrate First Class, Tumsar, by and under which,

respondent 1 (hereinafter referred to as "the accused" is acquitted

of offence punishable under section 138 of the Negotiable

Instruments Act, 1881 ('Act' for short).

2] Heard Shri A.M. Quazi, the learned counsel for the

appellant, Shri K.S. Motwani, the learned counsel for the

respondent 1 and Ms. T.H. Udeshi, the learned Additional Public

Prosecutor for respondent 2/State.

3] The gist of the complaint instituted by the appellant

(hereinafter referred to as "the complainant") is that he extended

by hand loan of Rs.65,000/- in cash to the accused in March,

2005. The repayment of the hand loan was to be done in two

months. The accused did not repay, the complainant pursued the

issue and the accused handed over cheque dated 21.06.2006 for

Rs.65,000/- to discharge the existing liability, to wit, repayment of

the hand loan. According to the complainant, the hand loan was

extended in view of the cordial relationship between the

complainant and the accused.

4] Concededly, the complainant was then serving as a

Sectional Engineer with Public Works Department at Tumsar.

The accused is concededly, a contractor. However, what is disputed

by the complainant is that the accused executed a contract on

behalf of one Harishankar Singh, who was awarded the contract of

road repairs. This assumes some significance since the defence of

the accused is that he handed over two blank cheques to the

complainant, as security for the payment of the illegal gratification

which was demanded by the complainant. The defence is that

since the accused did not pay the illegal gratification as demanded

by the complainant, one of the two cheques was misused.

5] Shri Quazi, the learned counsel for the complainant

submits that the order of acquittal dangerously borders on

perversity. The learned Magistrate was not alive to the statutory

presumption under section 118(a) and 139 of the Act. The police

report Exh.26, allegedly lodged by the accused, was after the

receipt of the statutory notice and ought to have been discarded

altogether, is the submission. According to the learned counsel for

the complainant, the statutory presumptions which stood

activated, have not been rebutted by the accused.

6] Concededly, there is no documentary proof evidencing

that the complainant extended hand loan of Rs.65,000/- in cash to

the accused. The complainant is not in a position even to disclose

the date on which the said hand loan is extended. The alleged

hand loan is not reflected in the income tax returns. In any event,

complainant did not produce on record the income tax returns.

7] Shri Quazi, the learned counsel for the complainant

however, invited my attention to Exh.36 which purports to be a

certificate signed by one Wasnik whose signature is identified by

CW 3 Shri Radheshyam. Shri Quazi submits, that the said

certificate dated 31.08.2006 would show that even in the past the

complainant has extended financial assistance of Rs.10,000/- to

the accused. I am afraid, certificate Exh.36 does not take the case

of the complainant any further. It is one thing to say that the

document is exhibited and another thing to say that the contents

of the document are duly proved. The record on the basis of which

Exh.36 is allegedly issued is not produced before the Court.

Mr. Wasnik, the author of the certificate is not examined. C.W. 3

does not claim to have any personal knowledge or knowledge

derived from official record that the contents of the certificate

correct. All that C.W. 3 says is that since he was working with

Mr. Wasnik, he is in a position to identify the signature.

The certificate dated 31.08.2006 is exhibited on the basis of the

said evidence. Be that as it may, the contents of the certificate have

not been proved.

8] Ms. Udeshi, the learned A.P.P. would submit, that it is

not sufficient for the appellant to demonstrate that a second view

is possible. This Court, ought not to interfere in the judgment of

acquittal unless the view taken is demonstrable perverse, is the

submission. The learned A.P.P. is right in her submission that

merely because this Court may have a second view, the judgment

of acquittal ought not to be interfered with, if the view taken by

the Magistrate is a possible or plausible view.

9] I have given my anxious consideration to the evidence

on record and the conclusions drawn by the learned Magistrate on

the basis thereof. The learned Magistrate has held that the

statutory presumptions have been rebutted by the accused. Be it

noted, that the accused has stepped into the witness box as D.W. 1.

One Mr. Selukar is examined as D.W. 2. One of the documents

which have been produced and proved in the evidence of D.W. 2 is

Exh.83 which is a letter addressed by the accused dated

18.12.2006 inter alia making a grievance that the bills in respect

of the work allotted to Harishankar Singh are not settled.

The significance of the said letter is that the accused has brought

on record some connection or nexus with the work allotted to

Harishankar Singh. It is not suggested to the accused that the said

letter is a fabricated document or is written only create a record.

The authenticity of the letter is not in doubt. The letter is

produced by Mr. Selokar D.W .2 who is serving as Deputy

Executive Engineer. The inference drawn by the learned

Magistrate on the basis of the cross-examination of C.W.1 and the

defence evidence is certainly not perverse. While there could be a

second view, as is vehemently argued by Shri Quazi, I am not

inclined to substitute the view of the learned Magistrate with

another view, assuming that the second hypothesis suggested by

Shri Quazi is a possible hypothesis.

10] There is no compelling reason demonstrated for

warranting interference in the judgment of acquittal.

  11]              The appeal is sans merit and is rejected.




                                                    JUDGE


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