M/S Krushna Associates vs The State Of Maharashtra & Anor
2017 Latest Caselaw 7795 Bom

                                        1                                       apeal473.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 473 OF 2006


 M/s Krushna Associates, 
 through Jitendra Krushnarao Patil
 (Prop.), Aged about 30 years, 
 Occupation - Business, 
 R/o Kamunja, District Amravati.                                ....       APPELLANT


                     VERSUS


 1) The State of Maharashtra,
     through.

 2) Vinod Pundlikrao Vatane,
     R/o Pimplod, Tq. Daryapur, 
     District - Amravati.                                       ....       RESPONDENTS

 ______________________________________________________________

                Shri D.G. Patil, Advocate for the appellant,
           Shri A.V. Palshikar, Addl.P.P. for respondent No.1, 
           Shri S.D. Dharaskar, Advocate for respondent No.2.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 4 OCTOBER, 2017.

th

ORAL JUDGMENT :

Exception is taken to the judgment and order dated

08-09-2005 in Summary Criminal Case No.2487/2002, delivered by

the learned Judicial Magistrate First Class, Court No.3, Amravati,

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acquitting respondent 2 of offence punishable under Section 138 of the

Negotiable Instruments Act, 1881.

2. Heard Shri D.G. Patil, learned Advocate for the appellant,

Shri A.V. Palshikar, learned Additional Public Prosecutor for

respondent 1 and Shri S.D. Dharaskar, learned Advocate for

respondent 2.

3. Shri D.G. Patil, learned Advocate for the appellant

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

judgment of acquittal and in particular the finding recorded that the

disputed cheque was not issued by respondent 2 (hereinafter referred

to as the "accused") towards discharge of existing liability, is against

the weight of evidence. He would submit, that concededly, the

accused was holding a nokarnama under the provisions of the

Maharashtra Prohibition Act and the Maharashtra Country Liquor

Rules, 1973 and under the said authority was managing the entire

affairs of the liquor business of the licence holder Laxman Kadtaji Patil.

The learned Advocate submits that it is irrefutable from the evidence

on record that the accused placed indent for country liquor and

pursuant to the indent placed by the accused, the complainant

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delivered the goods. Shri Patil would submit that the accused has not

rebutted the presumption under Sections 118(a) and Section 139 of

the Negotiable Instruments Act, 1881 and the defence that the cheque

in dispute was stolen from the shop has not been probablised even on

the touchstone of the preponderance of probability.

4. The learned Counsel for the accused would submit that

the finding recorded by the learned Magistrate that the disputed

cheque could not have been issued towards discharge of legally

enforceable debt or existing liability is unexceptionable. The accused

is admittedly not the owner of the liquor business and even if it is

assumed that he was in charge of the business under the authority of

the nokarnama, the accused cannot be held liable to discharge or settle

the liability towards payment for the liquor supplied by the distributor,

is the submission. The learned Advocate for the accused would further

submit that the judgment is not perverse and since a possible view is

taken, this Court ought not to interfere with the judgment of acquittal.

5. The defence of the accused is that he issued the cheque to

the brother of the complainant and the amount was Rs.587/- only.

The defence is that digit '166' fraudulently written before the digit

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'587'. A police complaint is lodged with the Yeoda Police Station and

charge-sheet is also filed by the police against the accused. The

learned Advocate for the complainant states that the brother of the

complainant is acquitted of the charge.

6. The learned Magistrate has recorded a finding of fact inter

alia in paragraph 6 of the judgment that even if it is assumed that the

cheque was issued for Rs.166587/- as is contended by the

complainant, since the accused was admittedly a mere servant, he

cannot be fastened with the liability to make the payment of the liquor

supplied to his employer. The finding recorded in paragraph 6 of the

judgment impugned is certainly not perverse and the view taken by the

learned Magistrate is not only a possible view, is the only view which

could have been taken in the teeth of the evidence on record.

7. The learned Magistrate has also recorded a finding that

the defence that the amount mentioned in the cheque came to be

altered/manipulated, has substance. However, even de hors the

aforesaid finding, the judgment impugned does not suffer from any

infirmity muchless perversity.

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8. I do not see any substance in the appeal. The appeal is

rejected. Bail bond of the accused shall stand discharged.

JUDGE adgokar