M/S Santaji Krishi Sewa Kendra ... vs Shankar Sonaji Rathod And Anr
2018 Latest Caselaw 589 Bom

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


                     CRIMINAL APPEAL NO.234 OF 2010


 M/s. Santaji Krishi Sewa Kendra,
 through its Proprietor Ravindra 
 Rambhau Take,
 aged about 52 years, 
 R/o. Arvi, District Wardha                                          ...APPELLANT


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

           
 1        Shankar Sonaji Rathod,
          aged adult,
          Occ. Agriculturist,
          R/o. Pachod, Tah. Arvi,
          District Wardha

 2        State of Maharashtra,
          through Law & Judiciary Department,
          Mantralaya, Mumbai                       ...RESPONDENTS

 -------------------------------------------------------------------------------------------
 Mr. J.D. Bastian, counsel for appellant.
 Mr. M.P. Karia, counsel for respondent 1.
 Mr. V.P. Gangane, Additional Public Prosecutor for respondent 2.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J.

DATE OF DECISION:18.01.2018

ORAL JUDGMENT

Challenge is to the judgment and order dated

30.11.2009, in Summary Criminal Case 680 of 2003, delivered by

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Judicial Magistrate First Class, Arvi, by and under which, the

respondent 1 / accused is acquitted of offence punishable under

section 138 of the Negotiable Instruments Act, 1881 ("Act" for

short).

2 Heard Shri Bastian the learned counsel for the appellant and

Shri M.P. Kariya, the learned counsel for respondent 1 and Shri. V.

P. Gangane, the learned Additional Public Prosecutor for

respondent 2.

3 The submission of the learned counsel Shri. Bastian is

that the accused failed to rebut the statutory presumption under

section 139 of the Act. The submission is that the learned

Magistrate committed serious error of law in holding that the

failure of the complainant to produce the accounts evidencing the

transaction is sufficient to rebut the statutory presumption.

4 Per contra, the learned counsel for the accused

submits that the accused has adduced defence witness. However,

it is well settled position of law, that in order to rebut the

presumption, it is not obligatory for the accused to step into the

witness box or to adduce direct evidence. The statutory

presumption can be rebutted by demonstrating that the existence

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of legally enforcible debt or liability is highly improbable. This can

be demonstrated from material produced by the complainant or

material extracted during the cross examination of the

complainant or the witnesses examined on behalf of the

complainant.

5 According to the complaint, cheque dated 27.2.2003

was issued to the complainant towards discharge of existing

liability to wit the payment of goods (fertilizers) purchased from

the shop of the complainant on credit, from time to time till 2003.

The signature on the cheque is not disputed. However, the

defence of the accused is that post 1997 he did not have any

business transaction with the complainant. He had given a cheque

as security in the year 1996, the cheque was blank in contents

although signed by the accused. It is in the context of the defence

that he did not have any business relations with the complainant

after 1997 and that even the account against which the cheque

was issued was closed in the year 1998, that the failure of the

complainant to produce documentary proof to substantiate that he

sold goods on credit to the accused till 2003, needs to be

appreciated.

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 6                Be it noted, that the accused has proved by examining 

D W 1 Mohan Dekate that the disputed cheque 977842 was one of

the fifty (977801 to 977850) cheques in the cheque book which

was issued to the accused in the year 1996. D W 1 has deposed

that except the disputed cheque every other cheque is duly

encashed. This evidence, and nothing is brought on record to

disbelieve the evidence, renders the existence of liability highly

improbable. The fact that the disputed cheque is a part of the

cheque book issued in the year 1996 and every other cheque is

duly encashed before the closure of the account in 1998 renders

the version of the complainant that the cheque was issued on

27.2.2003 extremely doubtful. Indeed, the presumption is duly

rebutted by the accused by bringing on record evidence to which

reference is made supra. In view of the rebuttal of the statutory

presumption under section 139 of the Act, the burden shifted on

the complainant to prove the existence of legally enforcible debt or

liability. I am afraid, the complainant has miserably failed to

discharge the burden which has shifted in view of the rebuttal of

the statutory presumption under section 139 of the Act.

7 The learned Magistrate has noted that the

complainant admitted in the cross examination that there did exist

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an agreement between him and the accused about the outstanding

amount. The agreement, which according to the complainant was

a written agreement, is not produced on record. Nothing is

produced on record to prove that there was any business

relationship between the complainant and the accused after 1997.

In the teeth of the evidence on record, the finding of the learned

Magistrate that the statutory presumption is duly rebutted and the

complainant thereafter did not prove the existence of legally

enforcible debt or liability, is unexceptionable.

8 At any rate, the view taken by the learned Magistrate

is neither perverse nor is the view vitiated by any apparent error of

law and no compelling case is made out for interfering in the

judgment and order of acquittal.

The appeal is sans substance, and is rejected.

JUDGE

RS Belkhede, PA