Abhijit Balwantrao Chavan vs Pradip Tukaram Kadam And Anr
2022 Latest Caselaw 27 Bom

                                                  45.alp.442.2018.odt

dik
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPLICATION NO. 442 OF 2018

       Abhijit Balwantrao Chavan             ... Applicant
             Vs
       Pradip Tukaram Kadam & Anr.           ... Respondents


       Mr. Kuldeep Nikam Advocate for the Applicant
       Mr. R.M.Pethe, APP for the Respondent.
       Mr. Bhooshan Mandlik i/b Mr. S.S.Patwardhan for Respondent
       No.1.

                             CORAM :      C.V.BHADANG, J.

                             DATE     :   3rd JANUARY, 2022

       P.C. :

This is an application for Leave to Appeal against

acquittal.

2. The Applicant/Complainant had filed a complaint

under Section 138 of the Negotiable Instruments Act, 1881 (for

short "Said Act") against the Respondent/Accused for dishonour

of a cheque for Rs.7 Lacs. The case made out by the

Complainant is that the Respondent who was a driver by

profession, was desirous of obtaining a tender for sand for which

45.alp.442.2018.odt

the Respondent was in need of Rs.7 Lacs. Further case is made

out that the Complainant collected the said amount from his

friend and paid the amount in cash to the Respondent, for which

the Respondent passed the subject cheque which was

dishonoured.

3. At the trial, the Complainant examined himself (CW-1)

and one more witness Sangram Shivaji Mane (CW-2). The

Respondent did not lead any evidence. The learned Magistrate

in his Judgment dated 1st August, 2017 found that as the

signature on the cheque is admitted, presumption under Section

139 of the Said Act is available in favour of the Complainant.

The learned Magistrate further went on appreciating the oral

evidence of the Complainant and C.W.2 in order to find that the

Respondent has rebutted the presumption. It is in that view of

the matter that, the Respondent has been acquitted.

4. I have heard the learned Advocate for the Applicant

and the learned Advocate for the Respondent. Perused record.

45.alp.442.2018.odt

5. Learned Advocate for the applicant has submitted

that the reasoning given by the learned Magistrate in holding

that the presumption stands rebutted is not acceptable and it is

perverse. It is submitted by the learned Advocate for the

applicant that the amount is paid by Respondent to the

Petitioner, and the signature on the cheque being admitted, the

statutory presumption is raised which cannot be held to have

been rebutted. Learned Advocate for the Applicant also placed

reliance on the decision of this Court in the case of Kashinath

Balu Gaonkar Vs. Smt. Sunita Krishnajirao, (2015 (2) DCR

142) in order to submit that the payment of amount in cash

cannot come in the way of the complainant.

6. Learned Advocate for the Respondent has taken me

through the evidence of the complainant in which he has

admitted that it was the complainant who was desirous to fill the

tender. However, on account of some formalities and

requirements, it was not possible for the complainant to do so,

and therefore, the tender was filled in the name of the

respondent. He also pointed out that the complainant has

45.alp.442.2018.odt

admitted that the respondent was helping him (the complainant)

in the matter of filling of the tender. It is submitted that there is

no acceptable evidence to show that the complainant had

collected the amount of Rs.7 Lacs and the same was paid in cash

to the respondent. He pointed out that the respondent was not

in the business of trading of sand as he is driver by profession

and it is unacceptable that the respondent would be desirous of

filling the tender.

7. I have considered the submissions made by the

learned advocates for both sides. It is true that the respondent

had admitted signature on the subject cheque, and therefore,

learned Magistrate was right in holding that the presumption

under Section 139 of the Said Act is available in favour of the

applicant/ complainant. However, on subsequent analysis of

evidence, learned Magistrate has rightly come to the conclusion

that the presumption stands rebutted. It is now well settled that

the accused can rebut such presumption on the basis of

preponderance of probability. The applicant claims that the

amount of Rs.7 Lacs was collected from his friends and paid in

45.alp.442.2018.odt

cash to the respondent. The complainant has also admitted that

the tender was filled in the name of the respondent and it was

the respondent who was helping the complainant in the said

matter. If this is so, surely the respondent has successfully

rebutted the presumption.

8 It is well settled that in an appeal of the present

nature, unless and until, the findings recorded by the learned

Magistrate are found to be perverse, no interference is called for.

Chandrappa & Ors. V/s. State of Karnataka1. Applying the

principles, no case for interference is made out. Application is

accordingly dismissed.

                                                          ( C. V. BHADANG, J. )



             Digitally signed by
NILAM        NILAM SANTOSH
SANTOSH      KAMBLE
             Date: 2022.01.11
KAMBLE       13:06:44 +0530




    1     (2007) 4 SCC 415