Shobha D/O Gopalrao Ingale vs Avinash Manohar Salkar
2017 Latest Caselaw 7916 Bom

 apeal526.08.J.odt                         1




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


                     CRIMINAL APPEAL NO.526 OF 2008


          Ku. Shobha d/o Gopalrao Ingale,
          Aged about 43 years,
          Occupation: Household,
          R/o Shriram Colony, Shibhora
          Road, In the house of Manoj Dhote,
          Morshi, Tq. Morshi,
          District Amravati.                 ....... APPELLANT


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


          Avinash s/o Manohar Salkar
          Aged about 41 years, 
          R/o Ambada, Tq. Morshi,
          District Amravati.                                 ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri M. Anilkumar, Advocate for Appellant.
          Shri N.R. Saboo, Advocate for Respondent.
 -------------------------------------------------------------------------------------------


          CORAM:            ROHIT B. DEO, J. 

          DATE:               th
                            9    OCTOBER, 2017.


 ORAL JUDGMENT



 1]               The   appellant,   who   is   the   original   complainant   in

Summary Criminal Case 454/2006, is aggrieved by the judgment

and order dated 11.12.2007 of the Judicial Magistrate First Class,

Court 3, Morshi, by and under which, the respondent-accused is

acquitted of offence punishable under section 138 of the

Negotiable Instruments Act, 1881.

2] The case of the complainant, as is unfolded during

the trial, is that she is employed as a teacher under the jurisdiction

of Morshi Panchayat Samiti. The accused is also a teacher whose

native place is Anjangaon.

3] Concededly, the complainant and the accused were in

relationship. The complainant contends that she and the accused

were helping each other financially. The accused used to borrow

money from the complainant intermittently and gained her trust

by returning the amount borrowed.

4] The accused suggested that a plot at Morshi be jointly

purchased. The complainant contends that she handed-over to the

accused Rs.60,000/- and a plot was jointly purchased and the

sale-deed duly registered.

5] The complainant further contends that as the

relationship between the accused and the complainant became

closer and more intimate, the accused suggested to the

complainant that since it would be difficult to construct a house

on the open plot, a constructed house be purchased jointly, which

suggestion the complainant readily accepted.

6] The complainant entered into an agreement dated

06.05.2004 with one Rajesh Burange to purchase a residential

house for Rs.6,00,000/-. The said agreement Exh.40 recites that

an amount of Rs.50,000/- is paid as an earnest and the balance

amount of Rs.5,50,000/- is payable at the time of execution of the

sale-deed.

7] The complainant contends that to complete the sale

transaction the accused asked her to contribute Rs.3,00,000/-.

The complainant availed finance from Shikshak Sahakari Bank,

withdrew some amount from G.P.F., sold some golden ornament

and arranged Rs.3,00,000/- which amount was handed-over to

the accused.

8] It is the case of the complainant that although the

accused promised to obtain the sale-deed in joint names, the

sale-deed dated 18.08.2004 was registered in the sole name of the

accused. The complainant insisted that the accused must return

Rs.3,00,000/- which was the amount contributed by the

complainant towards the purchase of the house. The accused

issued the disputed cheque dated 21.01.2006 for Rs.3,00,000/- in

favour of the complainant, which was dishonoured.

The complainant served the statutory notice and since the accused

failed to make the payment of the amount covered by the cheque,

instituted the complaint.

9] The complainant examined herself in support of the

complaint. The examination-in-chief is broadly consistent with the

contents of the complaint. In the cross-examination, the

complainant admits that in the sale-deed of the plot which was

purchased in the joint names of the complainant and the accused,

she is described to as the wife of the accused. The complainant

denies the suggestion that she was married to the accused as

on 30.12.2003 when the sale-deed of the plot at Morshi was

executed in the joint names of the complainant and the accused.

However, she admits that her marriage with the accused was

solemnized in 2005. The complainant is not in a position to

disclose the date on which she paid the amount of Rs.3,00,000/-

to the accused. She states that the payment was made to the

accused from time to time.

10] It is brought out in the cross-examination of the

complainant, that the first floor of the house purchased is duly

transferred in the name of the complainant by registered sale-deed

dated 20.04.2004. The complainant has deposed that she paid

Rs.1,20,000/- to the accused as consideration for the purchase of

the first floor of the house. She has denied the suggestion that no

amount was paid by the complainant to the accused as

consideration for the purchase of the first floor of the residential

house. She has also denied the suggestion that at the time of

execution of the agreement of sale she and the accused were

residing in the same house at Hanuman Nagar, Morshi.

This suggestion was given to the complainant in the context of the

recital in the agreement that the accused and the complainant

reside at Prakash Colony, Morshi. She has denied the suggestion

that while residing with the accused she obtained the disputed

cheque and is misusing the same.

11] The accused has examined himself as D.W.1.

The accused has deposed that the entire consideration for

purchasing the residential house is paid by the accused.

The accused has deposed that he borrowed Rs.4,00,000/- from

Central Bank of India, Branch Ambada and Rs.1,00,000/- from the

Co-operative Society of the employer-school. He deposed he did

not owe any amount to the complainant and the cheque in

possession of the complainant is misused. In the statement

recorded under section 313 of Cr.P.C., the accused states that the

false case is instituted to pressurize the accused to co-habit with

the complainant and is the outcome of matrimonial dispute. It is

also suggested to the complainant in her cross-examination that

the marriage between the complainant and the accused is not

dissolved, which suggestion is accepted by the complainant. It is

also suggested to the complainant that the complainant lodged a

complaint with the Mahila Atyachar Nivaran Committee,

Amravati, which suggestion is also accepted. However, the

complainant has denied that in the said complaint and in the

earlier police complaint she has expressed that the accused must

co-habit with her.

12] Ramesh Chahande is examined as defence witness 2

to prove that the accused borrowed Rs.4,00,000/- from the

Central Bank of India (Branch Ambada) and that the amount of

loan was disbursed or paid to the vendor.

13] The learned counsel for the appellant-complainant

Shri M. Anilkumar invites my attention to the judgments of the

Hon'ble Supreme Court in T Vasanthkumar vs. Vijayakumari 2015

LawSuit (SC) 402 and Ragappa vs. Mohan 2010 LawSuit (SC) 277.

The learned counsel for the accused, relying on the aforesaid

judgments, would contend that the accused has not rebutted the

presumption under section 139 of the Negotiable Instruments Act,

1881 which includes the presumption of existence of a legally

enforceable debt or liability. The learned counsel would submit

that since the signature on the cheque is concededly that of the

accused, the burden to disprove the existence of legally

recoverable debt or liability was on the accused, which burden the

accused has not discharged.

14] The position of law to which my attention is invited

by the learned counsel, is too well settled to warrant a debate.

However, the learned Magistrate was fully alive to the legal

position and was pleased to record a finding that the statutory

presumption under section 139 is rebutted successfully by the

accused.

15] The learned Magistrate has noted that the accused

has proved that he obtained a housing loan of Rs.4,00,000/-

on 18.08.2004 from Central Bank of India, Branch Ambada, and

the said amount was directly disbursed-paid to the vendor Rajesh

Burange, which is also the recital in the sale-deed Exh.47.

The learned Magistrate has further appreciated the evidence, inter

alia the recitals of sale-deed Exh.47, and recorded a finding that

the entire sale consideration of Rs.6,00,000/- is paid by the

accused. The version of the complainant that she has contributed

Rs.3,00,000/- towards the purchase of the house is rendered

doubtful, is the finding recorded by the learned Magistrate.

16] The learned Magistrate has noted that the

complainant claims to have paid an amount of Rs.1,20,000/- to

the accused as consideration for the purchase of the first floor of

the residential house. The said payment militates against the story

of the complainant that she contributed Rs.3,00,000/- or half of

50% of the consideration for the purchase of the house.

The accused purchased the residential house on 18.08.2004 and

the complainant was aware of the purchase since then.

The version of the complainant is that since the sale-deed was not

executed in joint names, she insisted that the accused refund the

contribution of Rs.3,00,000/- to the complainant. The learned

Magistrate has observed that it is highly improbable and unnatural

for the complainant to have paid Rs.1,20,000/- as consideration

for the purchase of the first floor, if an amount of Rs.3,00,000/-

was due and payable by the accused to the complainant.

17] The learned Magistrate has considered the entire

evidence on record holistically inter alia, inability of the

complainant to state as to when she paid the amount of

Rs.3,00,000/- to the accused towards the refund of which the

accused is said to have issued the disputed cheque.

18] The view taken by the learned Magistrate is not

perverse. The view is a possible view. In the absence of a

demonstrable perversity, I am not inclined to interfere with the

judgment of acquittal. The appeal is dismissed.

JUDGE

NSN