apeal90.12.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.90 OF 2012 M/s. [ENTITY], through Priorietor, Anandrao s/o. Shamrao Pakdhane, Aged about 47 yrs., Occ. Business, r/o. Main Road, Mangrulpir, Tah. Mangrulpir, Distt. Washim. APPELLANT VERSUS [ENTITY] s/o. Sheshrao Deshmukh, Aged about 42 yrs., Occ. Service. Z.P. Minor Irrigation Department, Mangrulpir, Tah. Mangrulpir, Distt. Washim. RESPONDENT -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri [ENTITY], Adv. for the Appellant. Shri [ENTITY], Adv. for the Respondent. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Downloaded on - 09/06/2013 18:45:14 apeal90.12.odt 2 CORAM : A.P.BHANGALE, J. DATE : 9.7.2012. ORAL JUDGMENT :
1. The appeal is directed against the judgment and order passed by the learned Judicial Magistrate, First Class, Mangrulpir, District Washim in [CASE NUMBER] delivered on 24th September, 2000 whereby the respondent/accused [ENTITY] was acquitted of the offence punishable under [SECTION] of the [ACT].
2. Heard the submissions at the bar.
3. It was the case of the complainant in the trial Court that he is a proprietor of [ENTITY], Tq.Mangrulpir, District Washim and the complainant was carrying on the business of selling building materials as a proprietor of the said firm. According to the complainant, the accused had purchased cement worth Rs.90,750/- on 2nd November, 2001 on credit. The accused had paid cash amount of Rs.14,750/- and for balance amount of Rs.76,000/-, he had issued a cheque bearing No.131210 drawn upon the Bank of Maharashtra, Mangrulpir Branch. That cheque was presented to the Akola Urban Co-operative Bank, Mangrulpir Branch by the complainant on 11.3.2003. But, on the following date, it was returned dishonoured for insufficient balance in the account of the accused. Therefore, the complainant had issued demand notice dt.12.4.2003, which was received by the accused on 19.4.2003, but he did not comply with the demand and therefore, the complainant had prosecuted the accused on the ground that he had committed the offence punishable under [SECTION] of the [ACT].
4. The complainant filed an affidavit in support of this version and was cross-examined in the trial Court.
Admittedly, the complainant had not filed any document on record to show that the respondent/accused had purchased the cement worth Rs.90,750/- from the complainant. In the course of cross-examination of the complainant, the complainant stated that, before the cheque in question, the accused never issued any cheque in his favour. Once this statement was made by the complainant, he was confronted with the cheque issued by the accused on 30.6.2001 for a sum of Rs.55,000/- drawn upon the State Bank of India, Mangrulpir (Exh.71). The complainant was further confronted with another cheque drawn on 10.10.2001 for a sum of Rs.62,000/- drawn upon the Bank of Maharashtra (Exh.72) which was, in fact, dishonoured when presented to the Akola Urban Co-operative Bank and in respect of which, the complainant had given notice of demand (Exh.73).
Cross-examination of the complainant, therefore, exposed that the complainant was hiding facts regarding earlier cheques received in his favour from the accused. On behalf of the accused, it could be demonstrated that the complainant pleaded ignorance as to whether the cheque (Exh.71) was dishonoured or not. While he admitted that the cheque (Exh.72) was issued by the accused in his favour in respect of which, demand notice (Exh.73) was issued. It was further admitted that no complaint was lodged in respect of dishonour of Exh.72 against the accused. Under these circumstances, the suggestion put to the complainant that he is dealing with the money lending business though denied, appears relevant notwithstanding the fact that the complainant stated that he had advanced money to the needy persons. The accused, who had defended the prosecution on the ground that nothing is outstanding against him and that he had issued a blank cheque by way of security, also examined two defence witnesses. One of them is [ENTITY], Branch Manager of the Bank of Maharashtra, Mangrulpir, who deposed that he had opened joint saving account in the name of accused and wife and on 23rd December, 2002, an amount of Rs.1,10,000/- was withdrawn from that account (Exh.78).
While another witness [ENTITY] (D.W.2) is brother of the complainant doing business in the name and style as "Vishwanath Enterprises". He deposed about receipt No.244, dt.23.12.2002 for a sum of Rs.50/- issued from his shop (Exh.18). According to him, receipt Book No.244 which was brought by him in the Court was lying in the shop of the complainant for some time. Although, according to him, the accused had purchased building material from the shop of the complainant and he is dealing from his shop and that of the complainant since the year 1997-98, there is no detail as to when the accused had purchased the building material from the shop of the complainant. The complainant himself did not adduce any evidence in respect of transaction, as alleged in the complaint regarding sale of cement goods to the accused.
The trial Court had acquitted the accused on the ground that the complainant failed to establish the evidence of any debt or liability which must be legally enforceable debt or liability.
If, according to the complainant, accused had purchased cement worth Rs.90,750/- on credit on 2.11.2001, and the cash amount was paid in the sum of Rs.14,750/-, it is difficult to believe that, for that transaction, the accused had issued the cheque in the sum of Rs.76,000/- on 14.9.2002.
According to the accused, he had paid a sum of Rs.50,000/-
to the complainant through his brother - Proprietor, Vishwanath Enterprises and prosecution has defended on the ground that he had issued blank cheque by way of security to the complainant in respect of earlier cheques issued (Exh.71, Exh.72). According to the complainant, he had not filed any complaint in respect of dishonour of cheque (cheque dt.10.10.2001) for a sum of Rs.62,000/-
drawn upon the Bank of Maharashtra, though it was dishonoured and notice of demand was issued demanding payment thereupon. This fact was, in fact, suppressed by the complainant in the complaint in the trial Court. According to him, he tried to explain on the ground that, in the event of dishonour of the cheques, the accused used to issue another cheque and seek time for payment of amount. The complainant had suppressed material facts relating to transactions of earlier cheques in respect of which no complaint was lodged to suit his convenience and to mislead the Court. He could not prove sale of cement goods to the accused.
5. Under these circumstances, it appears that the learned trial Judge has rightly relied upon the ruling in the case of [PRECEDENT], in which case the Apex Court observed that burden of proof on the shoulders of accused is not so heavy. He need not disprove the prosecution case in its entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence. The complainant did not produce the extract from the Books of account of his shop for sale regarding sale transactions of cement goods on credit nor any bill was produced as evidence of alleged transaction with the accused. On the other hand, cross-examination of the complainant revealed falsity of his version when complainant claimed that the accused never issued any cheque in his favour prior to transaction in question. But, when confronted with cheque Nos.71 and 72 and notice of demand (Ex.73) in the course of cross-examination, the complainant sped to wings in respect of true facts. Though it is denied by the complainant that he is indulging in the money lending transaction, it must be said that the accused succeeded on preponderance of probability to dislodge statutory presumptions which arose in favour of the complainant in view of [SECTION] and [SECTION] of the [ACT] as accused can successfully raise probability of his defence that he has not bought cement goods on credit from the complainant. The case of the accused that he had issued blank cheque by way of security which was dishonoured and demand notice had also been issued to the accused, but no complaint was filed
- appears probable in view of the admissions by the complainant in course of his cross-examination.
6. At this stage, reference must be made to the ruling in the case of [PRECEDENT]. In that case, the Apex Court was considering the aspect of rebuttal of presumption u/[SECTION] and [SECTION] of the [ACT]. It was held that presumptions u/[SECTION] and [SECTION] comes into existence as soon as the complainant proves that negotiable Instrument was executed by the accused. However, those presumptions are rebuttable and standard of proof required for rebuttal is not as heavy as that of the complainant.
Burden of proof can be shifted back to the complainant when accused produce sample convincing substantial evidence for to disbelieve the complainant's case. In that case, the Apex Court observed that the complainant was given sufficient opportunity to prove the transaction of sale of woolen carpets, but it became evident that no transaction of sale of woolen carpets had taken place between the complainant and the accused and there was no existing debt in discharge of which the accused was expected to issue the cheque to the complainant. In the circumstances, it was held that the accused has discharged the onus of proving that the cheque was not received by the holder in discharge of debt or liability. Under those circumstances, defence of the accused that the blank cheques were obtained by the complainant as advance payment becomes probable and the onus of burden would shift on the complainant since the complainant did not produce any Books of Account or Stock Register maintained by him in the course of his regular business or any acknowledgment for delivery of goods to establish transaction of sale of woolen carpets for a specified sum. The Court expressed the opinion that the complainant has failed to establish his case u/[SECTION] of the [ACT], as required by law and thus, the judgment and order of acquittal, which was passed by the trial Magistrate was restored, while the Apex Court was pleased to set aside the judgment of the High Court convicting the accused for the offence punishable under [SECTION] of the [ACT]. The ratio in the case of Kumar Exports, therefore, is attracted in the facts and circumstances of the present case.
7. In the present case, the complainant has failed to adduce any evidence regarding sale of cement bags as averred in the complaint. In the course of cross-examination, the accused could dislodge the statutory presumption by pointing out vital admissions by the complainant in the course of his cross-examination indicating that the complainant was hiding the truth from the Court in respect of earlier cheques issued from the accused (Exh.71 and 72) and demand notice (Exh.73). Apart from this, the complainant had no any documentary evidence to prove the sale transaction of cement bags to the accused. That being so, the evidence of complainant was rightly disbelieved by the trial Magistrate in the present case and the accused was rightly acquitted of the offence punishable under [SECTION] of the [ACT].
8. Even otherwise, when two probable views are possible in a case, the High Court does not interfere with the judgment and order of acquittal unless the impugned judgment and order is wholly unreasonable and unsustainable according to law. For all these reasons, therefore, no ground is made out to interfere with the impugned judgment and order. The appeal is, therefore, dismissed.
JUDGE [ENTITY]