Bombay High Court
Iqbal Abba Mohd Meshwani vs Someshwar Satyanarayan And Anr on 19 April, 2023
Bench: S. G. Mehare
revn-277 & 278-2007 judg.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.277 OF 2007
WITH
CRIMINAL REVISION APPLICATION NO.278 OF 2007
Iqbal s/o Abba Mohd. Meshwani,
Age : 56 years, Occupation : Business.,
R/o. Nagsen Colony, Opp. Jinsi Police Station,
Aurangabad Dist. Aurangabad. ...Applicant
VERSUS
1. Someshwar s/o Satyanarayan
Age : 41 years, Occu : Business,
R/o. Ganj, Bongir,
Dist. Nalegonda (A.P.), 508 116.
2. The State of Maharashtra
(Copy to be served on Public Prosecutor
of High Court of Judicature of
Bombay Bench at Aurangabad). ...Respondents
...
Mr. Shaikh Mohd Naseer & Mr. H.I. Pathan, Advocate for the
applicant.
Mr. S.P. Deshmukh, APP for the respondent/State.
Ms. Snehanjali Mohan Nimbalkar, Advocate for respondent no.1.
...
CORAM : S.G. MEHARE, J.
RESERVED ON : MARCH 06, 2023
PRONOUNCED ON : APRIL 19, 2023
JUDGMENT :-
1. Heard.
2. The applicant/complainant takes exception to the
judgment and order of acquittal of the learned Adhoc Additional
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Sessions Judge, Aurangabad dated 23.08.2007 in Criminal Appeals
Nos.41 of 2006 and 42 of 2006.
3. Parties to the applications are common; hence, both
applications are taken up for disposal together.
4. The applicant shall be referred to as ''the complainant
and the respondent shall be referred to as 'the accused'.
5. The complainant had filed two separate complaints under
Section 138 of the Negotiable Instruments Act against the accused for
the dishonour of the cheques bearing no.20170 dated 15.02.2004 for
Rs.77,000/- and no.369260 dated 04.02.2004 for Rs.35,000/- each.
The statutory notices were served upon the accused. The accused did
not comply with the notices. Appreciating the evidence and
considering the defence of the accused, the learned Judicial
Magistrate First Class held the accused guilty and convicted for the
offence punishable under Section 138 of the Negotiable Instruments
Act. Dissatisfying with the judgment of conviction, the accused
preferred the appeals. The Subordinate Appellate Court, by impugned
judgments and orders, acquitted the accused.
6. Learned counsel for the complainant has vehemently
argued that the learned Subordinate Appellate Court wrongly
recorded the findings that the verification and notices are inconsistent
and contrary and create a doubt about the complainant's case. The
learned Subordinate Appellate Court did not consider the
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presumption under Sections 118 and 139 of the Negotiable
Instruments Act. Such legal aspects have been ignored while
acquitting the accused. The accused did not deny issuance of the
cheques. Once, the accused fails to prove that those cheques were
issued as a security, the complainant's case ought to have been
believed. The impugned judgments of acquittal are erroneous on the
face of record. Hence, warrant interference.
7. Per contra, learned counsel for the accused has
vehemently argued that the applicant has no grounds to impugn the
judgments and orders of acquittal. The complainant was inconsistent
about the money transaction. The learned Subordinate Appellate
Court has correctly observed that such inconsistencies create a serious
doubt about the genuineness of issuing cheques. Therefore, the
defence of the accused was probable under the doctrine of
preponderance of probability. The complainant did not prove the
legally enforceable debt. It is also the question that whether the
revisions lie against the order of acquittal. She prayed to dismiss the
petitions.
8. The complainant had brought a case that he and his
brother-in-law namely Abdul Aziz runs a business of eggs and dry fish
under partnership. The accused used to purchase dry fish on credit
from the complainant. Towards the part payment of the outstanding
dues, the accused had issued the cheques in dispute. The cheques
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were issued towards legally enforceable debt. In his verification
statement, he came with a case that he had to receive money from
one Abdul Aziz and he has to receive money from the accused.
Therefore, the accused issued him the cheques in dispute. He has
admitted in his cross-examination that he did not have any personal
dues to be recovered from the accused.
9. After having gone through the reasons assigned by the
learned Subordinate Appellate Court, there appears substance that
the cheques in dispute were not issued directly to the complainant.
Material brought on record by way of defence appears probable. Since
the complainant had no personal dues against the accused, he cannot
claim that he was the holder in due course. The possibility of misusing
the cheques in dispute cannot be ruled out. In such an inconsistent
plea and having material admissions regarding the dues, it would be
difficult to accept that the complainant had to recover the legally
enforceable debt from the accused. In the light of the facts of the
case, none of the ingredients of Section 138 of Negotiable Instruments
Act have been proved. Apparently, the complainant failed to prove the
charges against the accused.
10. The learned Subordinate Appellate Court has correctly
appreciated the facts and considered the provisions of law and passed
the impugned judgments. The complainant failed to point out the
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apparent errors on the face of record. Therefore, the impugned
judgments and orders do not want interference.
11. As far as the objection as regards the tenability of the
petitions is concerned, it was a revision against the judgment passed
in the appeal. Therefore, this Court do not find any substance in the
objection.
12. For the above reasons, both revision applications do not
succeed. Hence, the following order:
ORDER
(i) Both revision applications stand dismissed.
(ii) No order as to costs.
(iii) Record and proceedings be returned to the learned Judicial
Magistrate First Class, 3rd Court, Aurangabad.
(iv) Rule is discharged.
(S.G. MEHARE, J.)
Mujaheed//
