Bombay High Court
Narayan Dilidas Sahu vs M/S. Agrawal Construction, Pro ... on 12 October, 2017
Bench: R. B. Deo
1 apeal586.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 586 OF 2014
Narayan Dilidas Sahu,
Aged about 55 years,
Occupation - Business,
R/o Masanganj, Near Chetandas
Bagicha, Amravati, Tahsil and
District Amravati. .... APPELLANT
VERSUS
M/s. Agrawal Construction,
Pro. Satyanarayan Balkishan Agrawal,
Aged about 60 years,
Occupation - Business,
R/o Jafarji Compound, Amravati,
Tahsil and District Amravati. .... RESPONDENT
______________________________________________________________
Shri S.N. Gaikwad, Advocate for the appellant,
Shri S. Ghatte, Advocate h/f. Shri Harode, Advocate for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 12
OCTOBER, 2017
th
ORAL JUDGMENT :
The appellant is the original complainant who is aggrieved
by the acquittal of the accused of offence punishable under Section 138
of the Negotiable Instruments Act, 1881, by and under the judgment
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dated 14-2-2012 in Summary Criminal Case 741/2007 delivered by
learned Judicial Magistrate First Class, Court 5, Amravati
2. Heard Shri S.N. Gaikwad, learned Counsel for the
appellant and Shri S. Ghatte, learned Counsel holding for Shri Harode,
learned Counsel for the respondent.
3. The learned Counsel for the appellant (hereinafter referred
to as the "complainant") submits that the judgment of acquittal
militates against the material on record. He would submit that the
learned Magistrate has been persuaded to hold that existing liability is
not proved in view of a solitary and stray admission in the evidence
that nothing was due and receivable from the accused. The learned
Counsel would submit that the learned Magistrate ought to have
holistically considered the evidence on record. He would further
submit that the other reason given by the learned Magistrate to acquit
the respondent (hereinafter referred to as the "accused") that the
return memos are not proved, is equally erroneous. He invites my
attention to the return memos on record and contends that the return
memos are duly signed by the office of Dr. Panjabrao Deshmukh Urban
Co-operative Bank Limited, City Branch, Amravati. He would further
3 apeal586.14
submit that since the return memos were signed by the officer of the
bank, the complainant was entitled to the benefit of the presumption
under Section 146 of the Negotiable Instruments Act, 1881.
4. Per contra, the learned Counsel for the accused submits
that the learned Magistrate has recorded a finding of fact that nothing
was due and payable by the accused to the complainant. The finding is
on the basis of an admission given by the complainant during cross-
examination. The learned Counsel for the accused would further
submit that since the return memos do not have the official mark of the
bank, the learned Magistrate has rightly recorded a finding that
presumption under Section 146 of the Negotiable Instruments Act,
1881 was not available to the complainant. The learned Counsel for
the accused would then submit that the learned Magistrate has taken a
possible view. Since the view is not perverse, this Court ought not to
interfere in the judgment of acquittal. I have given my anxious
consideration to the submissions of the learned Counsel and the
evidence on record.
5. The learned Counsel for the accused is right in contending
that interference with the judgment of acquittal would be warranted
4 apeal586.14
only if the view taken is perverse. If a possible view is taken by the
Court below, the appellate Court would not be justified in interfering in
the judgment of acquittal.
6. The complainant claims to have deposited various
amounts with the accused and deposits carrying interest of 1.5 percent
per month. The details given by the complainant in paragraph 1 of the
examination in chief are as follows :
"# 1]00][email protected]&] fnukad 07-10-2004] cWad vkWQ cMksnk&vejkorh
cWsadsps psd dz267951] lqHkk"kpanz jkBh nyky ;ksps ekQZr-
#-50][email protected]&] fnukad 06-6-2005] cWd vkWQ cMksnk&vejkorh cWadsps
psd dz-138376] #-25][email protected]& o psd d-212509] #-25][email protected]&
ujflaxnkl jkBh nyky ;kaps ekQZr-
#-60][email protected]&] fnukad 20-11-2003] cWad vkWQ cMksnk&vejkorh cWadsps
psd dz- 965045] lqHkk"kpanz jkBh nyky ;kaps ekQZr-
#-25][email protected]&] fnukad 28-06-2005] cWad vkWQ cMksnk&vejkorh cWsadsps
psd dz-0278115] fjrs'k jkBh nyky ;kaps ekQZr] vls ,dw.k #-
2]35][email protected]& tek Bsoys gksrs-"
7. The complainant further claims that on the dates of the
deposit, four cheques dated 09-1-2007 were issued by the accused.
The complainant admits in the cross-examination that the cheques
were issued as security.
5 apeal586.14
8. The learned Magistrate has noted in paragraphs 12 and 13
of the judgment impugned that the complainant has admitted that
there was no outstanding against the accused and the balance-sheet is
not filed since no outstanding is reflected in the balance-sheet. This
finding is not shown to be contrary to record.
9. During the cross-examination of the complainant a specific
suggestion was given by the accused that the disputed cheques were
never presented to the banker of the accused. The complainant was
aware of the defence of the accused that the cheques were not
presented to the banker of the accused for encashment. However, no
evidence is adduced by the complainant to prove the return memos.
The learned Magistrate is right in holding that the presumption under
Section 146 of the Negotiable Instruments Act, 1881 was not available
to the complainant since the return memos did not have the official
mark of the bank.
10. The view taken by the learned Magistrate that the return
memos are not proved is consistent with the evidence on record.
11. On a holistic appreciation of evidence, I do not see any
6 apeal586.14
perversity in the judgment of acquittal.
12. The appeal is without substance and is rejected.
JUDGE
adgokar
