Mr Atul S/O Achyutrao Sonak vs Mr Naresh S/O Bakaram Mankar
2022 Latest Caselaw 1646 Bom

                                                        1                              262.REVN.254-2019.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR
       CRIMINAL REVISION APPLICATION (REVN) NO. 254 OF 2019
( Mr. Atul S/o Achyutrao Sonak Vs. Mr. Naresh S/o Bakaram Mankar )
Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. H.D. Dangre, Advocate for the Applicant.
                                  Mr. P.P. Kotwal, Advocate for the Non-Applicant.

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 15th FEBRUARY, 2022.

Heard Mr. Dangre, learned counsel for the applicant and Mr. Kotwal, learned counsel for the non- applicant.

2. The revision challenges the concurrent finding recorded by the learned Judicial Magistrate First Class by the judgment dated 29.08.2017 (page 124) whereby the applicant has been convicted for the offences punishable under Sections 138 of the Negotiable Instruments Act and sentenced to suffer simple imprisonment till rising of Court and pay compensation of Rs.2,70,000/- to be deposited within 30 days in default to suffer simple imprisonment of three months. The said conviction has been upheld by the learned Sessions Court by the Judgment dated 26.09.2019.

3. Mr. Dangre, learned counsel for the applicants, submits, that the transaction between the applicant and non-applicant would demonstrate that the cheque in question bearing Cheque No.050777 dated 2 262.REVN.254-2019.odt

26.06.2014 for Rs.2,51,000/- drawn on the IDBI Bank, Sadar, Nagpur, in the name of the complainant was not for any legal debt or liability as is the requirement of Section 138 of the Negotiable Instruments Act, and therefore, the conviction by the Court below was unsustainable in law. He further submits, that the presumption under Section 139 is always rebuttable presumption and the facts in present matter, would indicate that the presumption stood rebutted by the nature of the evidence which was brought on record. He further submits, that the entire case of the complainant, is based upon the so called agreement dated 27.06.2014 (Exh.34 - page 33) under which a four wheeler bearing registration No.MH12/DE/7777 of Skoda Octavia Car was having to be sold, to the applicant for the consideration of Rs.2,51,000/-. Inviting my attention, to the said document (page 33), he submits, that the same, was not worthy of reliance, on account of several infirmity in as much as that the document though indicates that it was a type copy however, the blanks therein were handwritten without any counter signature of any person. The document was produced by the complainant and in the nature of the transaction alleged, would make that an impossibility, as it the document would always to the normal course of events be with the purchaser. He therefore submits, that the said documents did not have any legal sanctity. He further invites my attention, to the placement of the signature of the applicant on the said document which in the first part is below the caption of witnesses. He further submits, that 3 262.REVN.254-2019.odt

it is highly unlikely that a witness would sing in the margin and in no case, the broker is a party to the document. He submits, that once the documents ended at page 34 half way, the further insertion of terms 15 and 16 is further indicative of the same being not a genuine document. The blanks in clauses 15 and 16, which are handwritten, are also not counter signed by any one whomsoever which needs doubt to the credibility of the said document. He further submits, that the Dealer Mr. Arun Mishra, in fact was the ideal witness, who has not been examined by the complainant which again adds to the absence of genuineness to the said document.

4. He further places reliance upon Ex.29 (page 37) to contend that the said vehicle was earlier owned by one Raja Choudhary, from whom the complainant Naresh Mankar claims to have purchased the same on an earlier date, however, Exh.29 (page 37), indicates that the transfer of the vehicle in the name of the complainant, in the record of the RTO was effected only on 06.08.2014 whereas the alleged agreement at Exh.34, was dated 27.06.2014 which would indicate that on the date of the alleged agreement dated 27.04.2016, the complainant did not have any tittle to the said vehicle. Further reliance is placed upon Exh.59 (page

40) an NOC in Form 28 issued by the said Raja Choudhary, dated 05.03.2014 to substantiate the above contention. He further relies upon the statement made in the complaint para 1 by the complainant, that he was the absolute owner of the said four-wheeler which 4 262.REVN.254-2019.odt

according to him was palpably fall at the said vehicle was transferred to the name of the complainant only on 06.08.2014 and not earlier thereto. It is therefore contended that the vehicle in question was neither delivered into the possession of the applicant nor was the title to the said vehicle was transferred to the name of the applicant due to which the entitlement for the aforesaid cheque which was consideration for the said vehicle did not arise. He therefore contends, that in order to establish a legal liability as contemplated by Section 138 of the Negotiable Instruments Act, it was necessary for the complainant to bring on record material to indicate (a) The delivery of the vehicle to the applicant (b) transfer of a legal title of the vehicle in favour of the applicant and (c) delivery of the original papers of the vehicle to the applicant, so that the applicant could drive the vehicle with impunity. He therefore submits, that the record would indicate the absence of all these things as a result of which the finding rendered by the Court below as to the existence of the legal debt and liability, could be sustained. He further submits that even as on date the vehicle stands in the name of the complainant in the records of the RTO and there is no transfer form (Form 28 and 29) signed and delivered by the complainant to the applicant.

5. He further invites my attention to the cross examination of the complainant (page 66) in which the complainant states that there was no agreement with the said Mr. Raju Choudhari, in the matter of sale of the said 5 262.REVN.254-2019.odt

vehicle, however, only an NOC was received, executed by the original owner, though no application was made to the RTO. He further places reliance upon the admission in the cross examination (page 67) that at the time of the sale of the vehicle, the RTO documents in rerspect of the said vehicle were not supplied to the applicant/accused. Though it is stated voluntarily that TTO Form was signed, however, such a document is not placed on record. The complainant further states in his evidence that the delivery of the vehicle was handed over to the applicant on 26.6.2014. Further reliance is placed upon the cross examination at page 69, in which the complainant claims ignorance regarding the documents or the date of transfer of the said vehicle in his name and so also the absence of any document to indicate that before 6.8.2014 he was the owner of the said vehicle.

6. He further relies upon the evidence of PW-2 Akshay Madhukar Chaturkar, to contend that he does not state in which capacity the agreement at Exh. 34 was signed by him and the further cross examination in which he claims ignorance as to who had prepared the said document, who has written the entire handwritten portion in Exh. 34, who are the witnesses thereof, the engine number of the vehicle and the admission that the complainant had become the owner of the said vehicle from 6.8.2014. He further relies upon the evidence of PW-4 Suraj Hemraj Meshram, who in his cross examination gives an admission that Akshay Madhukar Chaturkar PW-2 had not signed on any document before 6 262.REVN.254-2019.odt

him on 26.6.2014 or for the matter of preparing any document in his presence or the ownership of the vehicle. Further reliance is placed upon the evidence of PW-6 Abhijit Uke (page 76), who in cross examination has stated that on 5.8.2014, he had received the application for transfer of the aforesaid vehicle along with Forms 28, 29, 30 as well as the NOC, address proof PAN Card etc., on which basis he has got the vehicle transferred in the name of the complainant.

JUDGE

DATED : 17th FEBRUARY, 2022.

Today, when at 04.25 p.m., as the Court was busy in a part heard matter, Mr. Dangre, learned counsel for the applicant, was intimated that it would not be possible for the Court to continue with the matter today and it will be kept tomorrow. Mr. Dangre, learned counsel for the applicant submits, that the further hearing of the matter would require substantial time and there may be a possibility that the matter may not be disposed of and even though the matter is a part heard and has been heard for a considerable part of time, he makes a request for releasing the matter from the part heard list. Though Mr. Kotwal, learned counsel for the non-applicant opposed, however considering what Mr. Dangre, learned counsel for the applicant, has said 7 262.REVN.254-2019.odt

and since the Court cannot make promises regarding the final disposal of the matter, the matter is released from the part heard list.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:18.02.2022 10:36