Bombay High Court
Kamalkishor Rampratap Bhutada vs Sanjay Bhima Rathod on 6 October, 2017
Bench: R. B. Deo
1 appeal9of2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 9 OF 2016
Kamalkishor Rampratap Bhutada,
aged 55 years, Occ. Business,
R/o. Vitthalwadi, near Sandeep Mangalam,
Yavatmal, Tahsil District Yavatmal .... APPELLANT
VERSUS
Sanjay Bhima Rathod,
Age about 50 years,
Occ. Cultivation/Business,
R/o. Gajanan Nagar, Pimpalgaon,
Yavatmal,
Tahsil District Yavatmal. .... RESPONDENT
______________________________________________________________
Mr. Anoop Dhore, Advocate for appellant.
Mr. V.G. Bhamborkar, Advocate for respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 6
OCTOBER, 2017
th
ORAL JUDGMENT :
The appellant seeks to assail judgment and order dated
16.6.2015 in Summary Criminal Case 1001 of 2012, delivered by
Judicial Magistrate First Class, Yavatmal, by and under which, the
respondent is acquitted of offence punishable under section 138 of
Negotiable Instruments Act, 1881 ("the Act" for short).
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2 Shri. Anup Dhore, the learned counsel appearing for the
appellant, submits that the judgment of acquittal is against the weight
of evidence on record. He invites my attention to the statutory
presumptions under section 118(a) and 139 of the Act. He would
contend that the accused has not rebutted the presumption.
3 Per contra, Shri. V.G. Bhamburkar, the learned counsel for
the accused would urge that the judgment of acquittal does not suffer
from any infirmity, on facts or in law.
4 Shri. V.G. Bhamburkar would contend that the learned
Magistrate has taken a view which is a possible or plausible view and
since the view is not perverse, in view of the well recognized
restrictions on exercise of appellate powers, this Court ought not to
interfere with the judgment of acquittal.
5 I have given my anxious consideration to the evidence on
record and to the impugned judgment.
6 The learned Magistrate has recorded a finding of fact that
the appellant (hereinafter referred to as "the complainant") failed to
prove that the disputed cheque was issued towards discharge of legally
3 appeal9of2016
enforceable debt or existing liability.
7 It is the case of the complainant that he extended a hand
loan of Rs. 10 lakh to the accused in view of the cordial relationship.
Towards refund of the said amount, the accused issued the disputed
cheque. The defence is that the complainant is engaged in illegal
money lending. The accused took a hand loan of Rs. 10,000/- with
interest @ Rs. 10% per annum for treatment of his wife, in the year
2005. The defence is that accused returned the said amount with
interest. However, the accused gave blank cheque bearing signature of
the accused in connection with the said transaction, which is being
misused.
8 The learned Magistrate rightly appreciated the evidence on
record and has noted that the complainant is not able to mention the
date on which the huge loan of Rs. 10 lakh was extended to the
accused, the complainant has not filed on record income tax returns for
the relevant years although he admits that he has submitted income tax
returns of the said year, the complainant has not filed on record any
document to show that he gave an amount of Rs. 10 lakh to the
accused on any particular date. The learned Magistrate has also noted
the admission of the complainant in the cross examination that the
4 appeal9of2016
complainant has instituted cases under section 138 of the Act against
one Gajanan Gulhane, Rajesh Kadu and Hemant Jagtap.
9 The learned Magistrate has held that the accused has
probebalized the defence on the touchstone of preponderance of
probabilities.
The view taken by the learned Magistrate is certainly not
perverse.
Appeal is without substance and is rejected.
JUDGE
Belkhede
