Jankalyan Nagri Sahkari Pat ... vs Vishnu S/O Dhasnu Gajam And ...
2017 Latest Caselaw 7992 Bom

                 appa107.16.J.odt                          1




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

                           CRIMINAL APPLICATION (APPA) NO.107 OF 2016
                                              IN
                                CRIMINAL APPEAL NO.         OF 2016

                          Jankalyan Nagri Sahkari Pat Sanstha,
                          Tumsar, Branch Sihora, through its
                          Manager Smt. Sanjivani Ravi Lanjewar,
                          Aged about 36 years, Occ: Service,
                          R/o Mehegaon, Tah. Tumsar,
                          District Bhandara.            ....... APPELLANT

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

                 1]       Shri Vishnu s/o Dhasnu Gajam,
                          Aged 40 years, Occupation: Service,
                          R/o Chandpur, Tah. Tumsar,
                          District Bhandara.

Deleted as       2]       State of Maharashtra,
 per office 
circular dt.              through G.P., Nagpur.                      ....... RESPONDENTS
24.06.2015       -------------------------------------------------------------------------------------------
                          Shri K.S. Motwani, Advocate for Appellant.
                          Shri R.A. Gupte, Advocate for Respondent No.1.
                 -------------------------------------------------------------------------------------------

                          CORAM:            ROHIT B. DEO, J. 

                          DATE:                th
                                            10    OCTOBER, 2017.


                 ORAL JUDGMENT



                 1]               Heard Shri K.S. Motwani, the learned Counsel for the

appellant and Shri R.A. Gupte, the learned Counsel for the

respondent 1.

2] The counsel for the appellant has placed on record

statement of the accused under section 313 of the Cr.P.C.

3] With the assistance of the learned counsels, I have

scrutinized the record.

4] The applicant is the original complainant in Summary

Criminal Case 601/2013. By judgment and order dated

01.01.2016 the respondent (accused) is acquitted of offence

punishable under section 138 of the Negotiable Instruments Act,

1881.

5] The gist of the complaint instituted by the

complainant society is that a loan of Rs.2,00,000/- was extended

to the accused on 28.10.2010.

6] The accused issued cheque bearing 007627 dated

30.03.2013 for Rs..2,12,265/- in favour of the complainant

society.

7] The said cheque was dishonoured, statutory notice

was issued and since the accused did not make the payment within

the statutorily prescribed period, the complainant instituted

complaint under section 138 of the Negotiable Instruments Act.

8] The defence of the accused is that he borrowed an

amount of Rs.1,75,000/- and made repayment of Rs.1,50,000/-.

Certain cheques which were blank although signed by the accused

were handed over to the complainant as security at the time of

availing of the loan.

9] The accused has stepped into the witness box to prove

the defence.

10] The learned Court was alive to the legal position that

it is the burden of the accused to dispel the statutory presumption

under section 138 and 139 of the Negotiable Instruments Act. The

learned Magistrate on a holistic appreciation of the evidence on

record, has come to the conclusion that the statutory presumptions

stand rebutted and the accused has probablized the defence on the

touchstone of preponderance of probabilities.

11] The evidence of the sole witness examined on behalf

of the complainant would reveal that the amounts paid by the

accused to the complainant society, in particular amounts referred

to in receipts exhibits 40 to 51 are not reflected in the accounts of

the society. The learned Trial Court has come to the conclusion

that the complainant has not proved that the disputed cheque was

issued towards existing liability.

12] I have given my anxious consideration to the record.

It is apparent from a perusal of the judgment, that the view taken

by the learned Magistrate is a possible view. The view is certainly

not perverse. This Court will not interfere in a judgment of

acquittal if two views could have been taken and the learned

Magistrate takes a view which is favourable to the accused.

13] Perusal of exhibits 40 to 51 would reveal that various

payments were made by the accused to the society. The amount

covered by exhibits 40 to 51 is not reflected in loan account

extract exhibit 35.

14] The learned Magistrate has appreciated the evidence

on record and inter alia has taken note of the obvious doubt in the

case of the complainant in view of the fact that the amounts

covered by exhibits 40 to 51 are not factored in by the

complainant.

15] I do not find any perversity in the judgment of the

learned Magistrate and an eminently possible view is taken.

This Court is not inclined to interfere with the judgment of

acquittal, since the view is not perverse.

  16]              The appeal is dismissed.



                                                       JUDGE



NSN