Santaji Yuwak Bigar Sheti Credit ... vs Purushottam S/O Diwakrrao ...
2017 Latest Caselaw 8109 Bom

                                         1                                     apeal279.16




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 279 OF 2016


 Santaji Yuwak Bigar Sheti Credit
 Co-operative Society Ltd., Narkhed,
 Taluka - Narkhed, District - Nagpur,
 through its Manager Shri Ashok s/o
 Namdeoraoji Khante, Aged about 40
 years, Occupation - Service, 
 R/o Narkhed, Taluka - Narkhed, 
 District - Nagpur.                                            ....       APPELLANT


                     VERSUS


 Purushottam s/o Diwakarrao Armarkar,
 Aged 55 years, Occ. - Business, 
 Proprietor of M/s. Vaibhav Cycle Store,
 Narkhed, R/o Near Laxminarayan Mandir,
 Shahar Vibhag, Narkhed, Taluka - Narkhed,
 District - Nagpur.                                            ....       RESPONDENT


 ______________________________________________________________

            Shri Y.N. Sonkusare, Advocate for the appellant,
                        None for the respondent.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :     12
                                               OCTOBER, 2017
                                            th



 ORAL JUDGMENT : 

The appellant, who is the original complainant, is

aggrieved by the judgment and order dated 04-3-2016 in Summary

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Criminal Case 128/2013 delivered by the learned Judicial Magistrate

First Class, Narkhed, by and under which the respondent (hereinafter

referred to as the "accused") is acquitted of offence punishable under

Section 138 of the Negotiable Instruments Act, 1881.

2. I have heard Shri Y.N. Sonkusare, learned Counsel for the

complainant. There is no appearance on behalf of the accused.

However, Shri Y.N. Sonkusare, learned Counsel for the complainant

has in all fairness invited my attention to the entire record including

the material which is adverse to the complainant, as is expected of an

officer of this Court.

3. The case of the complainant is that the disputed cheque

dated 07-3-2013 for Rs.1,07,000/- was issued by the accused in favour

of the complainant towards repayment of loan. It is the case of the

complainant society that the accused was extended loan of Rs.30,000/-

on 24-2-2000.

4. The record reveals that towards part payment of the said

loan the accused had issued (This is the version of the complainant)

cheque for Rs.14,000/-. The said cheque was dishonoured and the

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complainant instituted proceedings under Section 138 of the

Negotiable Instruments Act, 1881 which came to be compromised in

Lok-Adalat. The operative part of the award reads thus.

"1) In terms of compromise matter stands disposed of.

2) Accused is hereby acquitted from the offence punishable under section 138 of N.I. Act.

3) Bail bond of accused stand cancelled and surety discharged"

5. One of the terms of compromise records that although it is

the contention of the complainant society that the accused did not issue

any blank cheque, according to the accused, nine blank cheques are

lying with the complainant society. The relevant term records that no

cheque shall be utilized by the complainant unless a document of

consent is recorded before the Tahsildar.

6. The learned Magistrate has recorded a finding in the

judgment impugned, that in view of the terms of compromise recorded

in the Lok-Adalat, the complainant could not have used the disputed

cheque. The learned Magistrate noted that the accused entered the

witness box and proved his defence that in view of the compromise

deed, the blank cheque could not have been used by the complainant

society.

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7. The finding recorded by the learned Magistrate that the

accused had rebutted the presumption under Section 139 of the

Negotiable Instruments Act, 1881, is unexceptionable. The initiation of

proceedings is clearly contrary to the letter and spirit of the

compromise which is proved on record. The view taken by the learned

Magistrate is not only a possible view, it is the only view which could

have been taken in the teeth of the evidence on record.

8. The appeal is sans merit and is rejected.

JUDGE

adgokar