Bombay High Court
Tulshiram Giridharrao Podukhe vs V.M.B. Homes Thr. Partners, ... on 22 June, 2022
Bench: Avinash G. Gharote
(1) 9.appa.482.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 482 OF 2021
Tulshiram Giridharrao Potdukhe
Vs.
V. M. B. Homes Through Partners 1) Shri Chandrasen Gayaprasad Yadav and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. D. R. Bhoyar, Advocate for applicant.
CORAM : AVINASH G. GHAROTE, J.
DATE : 22/06/2022
1. Heard Mr. Bhoyar, learned counsel for the
applicant.
2. The application seeks grant of leave to appeal
against the judgment dated 17.2.2021 passed by the
learned Judicial Magistrate First Class, Court No.5,
Wardha, whereby proceeding instituted by the applicant/
complainant the same has been dismissed on the ground
that the complainant had failed to prove a legally
enforceable debt or liability.
3. Mr. Bhoyar, learned counsel for the applicant
submits that the impugned judgment is infirm on the
touchstone of the material available on record, and
therefore, cannot be sustained. He submits that
Rs.1,00,000/- was received by the complainant
consequent to the transaction in question dated
(2) 9.appa.482.2021
30.12.2014, was not relatable to the said transaction but
was relatable to some other transaction and therefore, it
was not permissible for the learned trial Court to have
relied upon it to hold that there was no legally
enforceable debt or liability and therefore, leave ought to
be granted.
4. Certain facts are not in dispute. On 30.12.2014
the complainant has lent an amount of Rs.5,98,000/- in
cash to the accused which is a partnership firm through
its partners, for the repayment of which, cheque
No.000235 in the above sum drawn on HDFC Bank,
Wardha was tendered to the complainant. The aforesaid
cheque when presented for realization was returned back
dishonoured for the reason 'funds insufficient' by a
memo dated 4.7.2015 issued by the HDFC, the bankers
of the accused, whereupon on 31.7.2015 a demand
notice was sent which was received on 5.8.2015 but was
not replied, resultant to which, a complaint came to be
filed on 25.8.2015. The complainant examined himself
and one Prakash Warghane as PW 2 who deposed that
the amount of Rs.5,98,000/- was paid in cash by the
complainant to the accused in his presence. The cheque
was proved as Exh.49. The cheque return memo as
Exh.50. The notice at Exh.51. No defence witnesses
were examined. The learned Magistrate by the
impugned judgment dated 17.2.2021 has held that the
complainant has failed to prove that the cheque was
(3) 9.appa.482.2021
issued for legal debt and liability.
5. It is material to note, that a defence was raised
by the accused that on several dates the accused had
repaid the entire amount to the complainant, as detailed
in para 20 of the judgment. It is also contended that
under various declarations of the dates as mentioned in
para 23 of the judgment issued by the complainant, he
has admitted the receipt of the entire amount to the
complainant. The complainant had denied the signature
on the declarations as a result, on the request of the
accused the declarations were sent to the handwriting
expert for his opinion. The opinion was placed on
record, however, the handwriting expert who had
rendered the opinion never entered the witness box as a
result of which, the reports were not proved and thus
rightly not relied upon by the learned trial Court. Since
the signature on the cheque was admitted by the accused
no.1, the burden to rebut the presumption under Section
139 of the Negotiable Instruments Act squarely stood
upon the accused to discharge which the accused has
relied upon the cross-examination of the complainant.
The cross-examination of the complainant indicates the
admission of receiving of sum of Rs.1,00,000/- on
19.1.2015 by NEFT. Though, he has denied that the said
amount was received under the aforesaid transaction but
claimed that the same was received under some other
transaction, there is absolutely no evidence in this
(4) 9.appa.482.2021
regard. Once the complainant admits receipt of part of
the cheque amount consequent to the transaction in
question the logical corollary would be that the receipt
was in respect of the transaction in question, unless
material was brought on record by the complainant to
indicate otherwise. In the instance case, admittedly
there is no material from the side of the complainant to
indicate that the receipt of Rs.1,00,000/- by NEFT on
19.1.2015, was not in relation to the transaction in
question but in relation to some other transaction.
Admittedly, the receipt of Rs.1,00,000/- is prior in point
of time to the presentation of the cheque, considering
which, the cheque amount clearly was not due and
payable. It was permissible for the complainant to have
come out with a case in the notice itself as well as in the
complaint that receipt of the aforesaid amount on
19.1.2015 was in respect some other transaction which
could have been pleaded and demonstrated, however,
that is not the case, Considering which, I do not see any
infirmity with the findings rendered by the learned
Magistrate and no case for grant of leave is made out.
The request for leave is accordingly declined.
The application is dismissed.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:23.06.2022
13:53
