Sukhadev S/O Namdev Devale vs Pralhad Haribhau Bhoyar
2022 Latest Caselaw 6294 Bom

                                                          1                                  34.APEAL.94-2011.odt




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

                            CRIMINAL APPEAL NO. 94 OF 2011
                                  ( Sukhadev S/o Namdev Devale
                                               Vs.
                                     Pralhad Haribhau Bhoyar )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. D.R. Khapre, Advocate for the Appellant.
                                  Mr. B.N. Mohta, Advocate for the Respondent.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 5th JULY, 2022.

Heard Mr. Khapre, learned counsel for the appellant and Mr. Mohta, learned counsel for the respondent.

2. The appeal challenges the judgment dated 16.09.2010 passed by the learned Judicial Magistrate First Class, Court No.3. Washim, whereby the accused/respondent has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.

3. Mr. Khapre, learned counsel for the appellant submits, that since the signature on the cheque was admitted, the presumption under Section 138 of the Negotiable Instruments Act, stood attracted, and therefore, since there is no evidence in defence led by the accused, the nature of cross-examination would not 2 34.APEAL.94-2011.odt

indicate the rebuttal of the presumption, and therefore, the acquittal of the accused by dismissing the complaint by the impugned judgment was incorrect and is therefore required to be set aside and the accused be convicted for the offence under Section 138 of the Negotiable Instruments Act.

4.           Mr.   Mohta,    learned    counsel      for   the
respondent/accused      submits,     that     though       the

presumption under Section 139 of the Negotiable Instruments Act, stood attracted on the facts of the matter, the cross-examination of the complainant would indicate that the presumption stood rebutted, and therefore, the judgment of acquittal was clearly justified.

5. The complaint indicates, that the complainant and the accused were related. The complainant was resident of Wahsim and was employed as a teacher. The complaint indicates that in the month of April 2008, since the marriage of the daughter of the accused was fixed and for the other household expenses, a demand of rupees one lakh was made by the accused, which were accordingly given by the complainant in April 2008 to the accused. This amount was agreed to be paid within a period of one month. After a month when a demand for repayment was made, the accused claimed to have pleaded for time, which was extended. Ultimately it is claimed that a post dated cheque 27.12.2008 bearing No. 743240 drawn on Washim Urban Co-operative Bank Ltd., Washim, in the sum of rupees one lakh has been handed over by the accused to the complainant for repayment of 3 34.APEAL.94-2011.odt

the aforesaid amount. When presented the same was dishonoured on 29.12.2008 for insufficient funds. A notice dated 02.01.2009 was sent which was not received and the complaint was lodged on 16.02.2009.

6. The complainant entered the witness box by filing his affidavit in lieu of evidence at Exh. 14-C on 06.05.2009 and was extensively cross examined. In cross-examination, it is brought out that the money was lent to the accused Pralhad in the month of April, approximately 10 to 15 days prior to the marriage of his daughter, though the exact date is not forth coming. Admittedly, there is no document executed evidencing the loan transaction. It is further contended, that an amount of Rs. 70,000/- was already with the complainant, Rs. 20,000/- was borrowed from his father at Nagardas and was received from his father at around 02.04.2008 and Rs. 10,000/- was borrowed from Haribhau Ratnaji. As against this, in his cross-examination, the marriage invitation of the daughter of the accused was shown to the complainant, which was admitted by the complainant and has been marked as Exh. 42. According to Exh. 42, the marriage of the daughter of the accused had already been taken place on 29.03.2008, and therefore, the story put forth by the complainant regarding the purpose for advancing the loan to the accused, stood discredited. It is trite law that the presumption under Section 139 of the Negotiable Instruments Act, can be rebutted either by leading defence evidence or by the cross-examination of the 4 34.APEAL.94-2011.odt

complainant. In the instant case, when the story which is put forth in the complaint by the complainant, that the amount was advanced by him as a hand loan for the purpose of future marriage of the daughter stood discredited on account of his admission in his cross-examination as indicated above, in my considered opinion, the presumption under Section 139 of the Negotiable Instruments Act, has been rightly held by the learned Judicial Magistrate First Class, to have stood rebutted. That being the position, since there is no other evidence on record to support the story of the complainant as advanced in the complaint, the acquittal of the accused by the impugned judgment on the above ground cannot be faulted with, I therefore do not see any reason to interfere in the impugned judgment.

7. The appeal is without any merit and therefore dismissed with no order as to costs.

8. Pending application/s, if any, shall stand disposed of accordingly.

JUDGE

SD. Bhimte