Bombay High Court
Shyam Shivhari Ghulaxe vs Vinodkisanrao Damaye & Ors on 12 October, 2017
Bench: R. B. Deo
1 apeal567.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 567 OF 2006
Shyam Shivhari Ghulaxe,
Aged about 42 years,
Occupation - Business,
R/o Keshav Colony, Amravati,
Tq. & District - Amravati. .... APPELLANT
VERSUS
1) Shri Vinod Kisanrao Damaye,
R/o Kurha (Wardha), Tq. Tiosa,
District - Amravati.
2) State of Maharashtra,
through its P.S.O. Kurha (Wardha),
Tq. Tiosa, District - Amravati. .... RESPONDENT
______________________________________________________________
None for the appellant,
Shri Vikrant Pandey, Advocate h/f. Shri P.S. Khubalkar, Advocate for
respondent No.1,
Mrs. M.H. Deshmukh, Addl.P.P. for respondent No.2.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 12
OCTOBER, 2017
th
ORAL JUDGMENT :
The appeal was called out for hearing on 11-10-2017.
There was no appearance on behalf of the appellant.
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Even earlier on 08-9-2017 there was no appearance on
behalf of the appellant and this Court directed that the appellant to pay
costs of Rs.201/-.
Even today, there is no appearance on behalf of the
appellant. The order dated 08-9-2017 to pay costs is not complied
with.
2. With the assistance of Shri Vikrant Pandey, learned
Counsel holding for Shri P.S. Khubalkar, learned Counsel for
respondent 1 and Mrs. M.H. Deshmukh, the Additional Public
Prosecutor for respondent 2, I have scrutinized the record.
3. The appellant (hereinafter referred to as the
"complainant") is aggrieved by the judgment and order dated
28-4-2006 in Summary Criminal Case 3148/2002 delivered by the
learned Judicial Magistrate First Class, Court 3, Amravati acquitting the
respondent (hereinafter referred to as the "accused") of offence
punishable under Section 138 of the Negotiable Instruments Act, 1881.
4. The gist of the complaint instituted under Section 138 of
the Negotiable Instruments Act, 1881 is that the complainant and the
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accused were on friendly terms, the accused approached the
complainant for hand loan of Rs.63,000/- for purchasing car, the
complainant extended the hand loan in cash and the accused issued
cheque of Rs.63,000/- dated 26-5-2002 from his account with Amravati
Merchant Co-operative Bank Limited towards the refund of the loan.
The cheque was dishonoured, notice was issued and since the accused
did not make the payment of the amount covered by the disputed
cheque, the complainant instituted proceedings under Section 138 of
the Negotiable Instruments Act, 1881.
5. The defence of the accused is that the wife of the
complainant one Arati Chore was the owner of Cello Car bearing
vehicle No.MH-04/AC-1353. The accused purchased the said car from
Arati. However, since the accused did not have sufficient amount, he
promised Arati to make the payment within eight days. At the instance
of Arati, the complainant took the accused to Merchant Co-operative
Bank, Amravati. The complainant was a member of the said
bank/society. The complainant introduced the accused and an account
was opened in the said bank. A cheque book was issued by the said
bank, out of which the accused handed over a cheque for Rs.63,000/-
to the complainant duly signed but without the name of the payee
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written on the cheque. The defence of the accused is that he obtained
the finance from Sainee Automobiles and gave the amount of
Rs.50,000/- to Arati Chore in presence of the complainant. The
balance amount of Rs.13,000/- was to be paid within eight days.
Accordingly, the accused and his friend visited the residence of the
complainant to hand over the said amount to his wife Arati. Since
Arati was not available, the said amount was given to the complainant
in cash. The complainant assured the accused that the cheque will be
returned after his wife Arati returns from college. The accused again
visited the residence of the complainant in the evening, Arati was again
not available and the accused returned without the cheque. It is the
defence of the accused that the cheque was misused and proceedings
instituted.
6. The accused has stepped into the witness box. The friend
of the accused Nandu who according to the accused accompanied him
to the house of the complainant when the amount of Rs.13,000/- was
handed over, is examined as D.W.2. Pertinently, except for a bald
suggestion that D.W.2 is deposing falsely at the instance of the accused,
evidence of D.W.2 has gone virtually unchallenged.
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7. The learned trial Court has noted that the complainant has
not disclosed the transaction between his wife Arati and the accused.
Taking a holistic view of the entire evidence on record, the learned
Magistrate has recorded a finding that the accused has rebutted the
presumption under Section 139 of the Negotiable Instruments Act and
that the complainant has not proved the existence of debt or liability.
8. I do not see any perversity in the judgment of the learned
Magistrate. It is more than apparent that the complainant did not
make a clean disclosure before the Court below. However, in the cross-
examination, the complainant has admitted that the accused purchased
a car from his wife Arati. It is also admitted that it was the
complainant who helped the accused in opening the account with
Amravati Merchant Co-operative Bank, Amravati. The accused has
stepped into the witness box and I do not find anything in the cross-
examination which would impeach the credibility of the accused. As
already observed, the evidence of D.W.2 is virtually unrebutted.
9. The view taken by the learned Magistrate that the cheque
was initially issued as security and since the amount of sale
consideration of car was paid, there was no existing debt or liability, is
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a possible view and is certainly not perverse.
10. I am not inclined to interfere in the judgment of acquittal.
The appeal is sans merit and is rejected.
JUDGE
adgokar
