Bharatkumar Rajanna Bagde vs Vasant Tulshiram Sangole
2017 Latest Caselaw 7377 Bom

 apeal498of04.odt                          1



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


                     CRIMINAL APPEAL NO.498 OF 2004


 Bharatkumar s/o. Rajanna Bagde,
 aged about 48 years, Occ. Business,
 R/o. Gurvar Bazar, Washim,
 Tahsil Washim, District Washim.                                     ...APPELLANT


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


 Vasant Tulshiram Sangole,
 aged about 50 years, 
 Occupation Service,
 R/o. Govt. Polytechnic College Quarters,
 Washim, Tahsil Washim, 
 District Washim.                                                    ...RESPONDENT

 -------------------------------------------------------------------------------------------
          None for appellant 
          None for respondent.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                st
                                                     21    SEPTEMBER, 2017.


 ORAL JUDGMENT

The appellant is challenging the judgment in

Summary Criminal Case 1528 of 2002 dated 4.6.2004 delivered by

Judicial Magistrate First Class, Washim by and under which the

respondent is acquitted of offence punishable under section 138 of

Negotiable Instruments Act, 1881 ("Act" for short).

2 When the appeal was called out on 13.3.2017, there

was no appearance on behalf of the appellant. The appeal was

adjourned till today subject to payment of cost of Rs. 301/- to be

deposited with the High Court Legal Aid Sub Committee. Even

today, there is no appearance on behalf of the appellant. The

costs have not been deposited. It is apparent that the Court is not

likely to receive any assistance from the counsel for the appellant.

I therefore, intend to decide the appeal on merits consistent with

the dictum of the Hon'ble Supreme Court in Bani Singh Vs. State of

Uttar Pradesh, AIR 1996(4)SCC720.

3 Shri. H.R. Dhumale, the learned APP has graciously

agreed to assist the Court in the absence of the counsel for the

appellant. None appears for the respondent though served.

4 With the assistance of the learned APP Shri Dhumale,

I have scrutinized the original record of the proceeding. The

limitations of the Appellate Court, in disturbing findings of

acquittal, are well recognized and settled. If the Trial Court has

taken a possible view, this Court would not substitute the said

view even if a second view is possible. Unless the judgment of

acquittal is perverse, this Court would be extremely reluctant to

interfere with the judgment of acquittal. On the touchstone of the

well established parameters of subjecting a judgment of acquittal

to judicial scrutiny, I have scrutinized the evidence on record and

the findings recorded by the learned Magistrate.

5 The complainant is engaged in the business of laundry

and claims to have extended hand loan of Rs. 70,000/- to the

accused on 15.3.2000. The complainant states that the amount of

hand loan was to be repaid whenever demanded. The

complainant made several demands and the accused ultimately

issued cheque for Rs.60,000/- on 20.8.2002 and assured the

complainant that the balance amount of Rs. 10,000/- shall be paid

later on. This cheque was dishonoured, the statutory notice was

issued and since there was no compliance, the complainant

instituted the complaint under section 138 of the Negotiable

Instruments Act.

6 The complainant had examined himself as PW 1 while

the accused has examined one Sandhya Sangole and Kalu Kisan

Pande as defence witnesses.

7 The defence is that the accused received Rs. 10,000/-

only from one Raju Dhangade as hand loan and the said amount

was returned to Raju with interest. Rs. 35,000/- was returned to

Raju, is the version of the accused. The accused has denied having

received Rs. 70,000/- from the complainant.

8 The learned Magistrate has noted in paragraph 8 of

the judgment that the account number and ledger number of the

account of the accused is apparently written in different ink and

handwriting. The contents of the cheque and the signature are

also apparently in different ink and different handwriting. The

learned Trial Court has further noted that the defence witnesses

have brought on record that Rs. 10,000/- was borrowed by the

accused Raju Ghongade. DW 2 Kalu Pande has deposed that he

was mediator in the transaction. The version of DW 2 is not

seriously challenged by the complainant, is the finding recorded by

the learned Magistrate. DW 1 is the wife of the accused. She has

deposed that only Rs. 10,000/-was borrowed from Raju Ghongade

in the year 1997 and DW 2 acted as the mediator. DW 1 Sandhya

has deposed that Raju Dhongade is a money lender and while

lending amount, Raju used to obtain signatures on blank stamp

papers and also cheques. DW 1 has deposed that Raju had taken

two blank cheques from the accused and out of two one is misused

by the complainant. DW 1 has stated that Raju used to institute

complaint against the borrower in the name of other person since

Raju is a money lender. DW 1 has asserted that the complainant is

not known to the accused or to DW 1.

9 The learned Magistrate, on a holistic appreciation of

evidence, has come to a conclusion that the accused has

successfully rebutted the statutory presumption. A finding is

recorded that it is not proved that the disputed cheque was issued

towards an existing liability. The finding is a possible view and is

certainly not perverse.

I am not inclined to interfere with the judgment of

acquittal.

The appeal is sans merit and is rejected.

The Court appreciates the valuable assistance rendered by

the learned APP Shri. H.R. Dhumale.

JUDGE

Belkhede