Bhausaheb Deorao Patil Shetkari ... vs State Of Maharashtra Thr. Pso ...
2017 Latest Caselaw 7367 Bom

                                     1                                         apeal393.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.393 OF 2006



 Bhausaheb Deorao Patil, 
 Shetkari Sahakari Ginning And Pressing
 Society Ltd., Jawala (Reg.No.5), 
 through its Manager, Shri Gunwant
 Deorao Dhaye, R/o Jawala, Tq. Arni,
 District Yavatmal.                                            ....       APPELLANT


                     VERSUS


 1) State of Maharashtra,
     through the P.S.O. Arni, 
     District Yavatmal.

 2) Istar Ahasanbhai Koshish,
     Aged about 48 years, 
     Occupation - Business, 
     R/o Neharu Nagar (Abhivandan),
     Yavatmal, District Yavatmal.                              ....       RESPONDENTS

 ______________________________________________________________

                        None for the appellant, 
          Smt. M.H. Deshmukh, Addl.P.P. for respondent No.1,
  Shri Subhan, Advocate h/f. Shri Firdos Mirza, Advocate for respondent
                                  No.2.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 21 SEPTEMBER, 2017 st

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ORAL JUDGMENT :

The Counsel appearing for the appellant was absent on the

last date of hearing. Record reveals that the Counsel for the appellant

has not collected the paper-book. By order dated 08-9-2017, the

appellant was directed to pay costs of Rs.201/- and the appeal was

directed to be listed in the week commencing from 18-9-2017. The

appellant has not paid the costs and there is no appearance on behalf

of the appellant.

With the assistance of Smt. M.H. Deshmukh, learned

Additional Public Prosecutor for respondent 1 and Shri Subhan,

learned Counsel holding for Shri Firdos Mirza, learned Counsel for

respondent 2, I have scrutinized the original record and I propose to

decide the appeal on merits consistent with the dictum of the Hon'ble

Supreme Court in the case of Bani Singh and others vs. State of

Uttar Pradesh reported in (1996) 4 SCC 720.

2. The challenge is to the judgment and order dated

11-4-2005, delivered by the learned Judicial Magistrate First Class,

Digras in Criminal Complaint Case 2152/2004, by and under which

respondent 2 is acquitted of offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (hereinafter referred to as the

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"Act"). The complainant is a co-operative society. The gist of the

complaint under Section 138 of the Act is that respondent 2

(hereinafter referred to as the "accused") took the factory of the

complainant on lease for the year 2000-01 on rent of Rs.2,24,888/-.

The accused also agreed to incur expenses for maintenance, machinery

repairs, electricity charges, labour payments, insurance charges, etc. in

addition to the rent. The complaint states that as on 30-6-2001 an

amount of Rs.1,68,907/- was recoverable from the accused and on that

day the accused issued cheque 14396 for Rs.1,00,000/- as part

payment. The said cheque was dishonoured, statutory notice was

issued, since the accused did not comply with the notice, the complaint

was instituted.

3. The complainant examined one Gunwant Dhaye, the

Manager of the complainant as C.W.1. He has deposed that as per the

agreement, the accused is liable to pay Rs.1,68,907/- to the

complainant as on 30-6-2001, that on the same day the cheque was

issued as part payment and was subsequently dishonoured for want of

sufficient funds in the account of the accused. In the cross-

examination, C.W.1 admits that the complainant had asked the

accused to furnish bank guarantee of Rs.1,00,000/- and since the

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accused could not furnish the bank guarantee, he gave post-dated

cheque of Rs.1,00,000/- dated 30-6-2001. C.W.1 has further deposed

that the amount recoverable as on 30-6-2001, even according to the

resolution Exhibit 46 of the complainant society, is Rs.1,26,845/- and

not Rs.1,68,907/-. C.W.1 further admits the payment of Rs.7,500/- on

22-12-2000, Rs.60,000/- on 09-2-2001, Rs.24,000/- on 13-1-2001 and

Rs.7,000/- on 28-4-2001 by the accused. He has admitted receipt of

total amount of Rs.99,500/- from the accused and has further admitted

that he is not in a position to tell as to how much amount is

recoverable from the accused and how much amount has been paid by

the accused. It is further evident from the evidence of C.W.1 that the

accounts between the complainant and the accused were not settled.

C.W.2 who is the President of the complainant has admitted that the

cheque of Rs.1,00,000/- was given on 30-4-2001 in lieu of bank

guarantee. He has admitted that as on 30-4-2001 nothing was due

and payable by the accused and then C.W.2 has volunteered that since

accounts were not settled as on 30-4-2001, the amount due as on

30-4-2001 was not known.

4. The accused has examined himself at Exhibit 59. He

states that when the cheque was issued, there was no amount due and

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payable to the complainant. The accounts were not settled at any

point in time. He states that it was in 2000 that he issued the post-

dated cheque to the complainant and that too since he could not

furnish the bank guarantee. He has deposed, by giving details of the

payment made, that no amount was due to the complainant society as

on 30-6-2001.

5. The learned Magistrate has recorded a finding of fact that

the cheque was issued as security and more importantly that the

accounts were not settled, and existing liability or debt is not proved.

The learned Magistrate has recorded a categorical finding in paragraph

30 of the judgment impugned that no amount was due and payable

when the cheque was issued, the complainant has not filed the

statement of account on record, no evidence is adduced to show that

any amount was due and payable by the accused to the complainant as

on 30-6-2001. The learned Magistrate has considered the entire

evidence on record and the appreciation of evidence is

unexceptionable. The finding recorded that it is not proved that the

cheque was issued towards existing liability or debt, is the only finding

which could have been recorded in the teeth of the evidence on record,

particularly the admissions given by C.W.1 and C.W.2 in the cross-

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examination. At any rate and in any event the learned Magistrate has

taken a possible or plausible view and the view is not certainly

perverse. I see no reason to interfere in the judgment of acquittal.

The appeal is dismissed. Bail bond of the accused shall

stand discharged.

JUDGE

adgokar