1 criap-3874.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3874 OF 2009 The Maharashtra State Co-op. Applicant/ori. Marketing Federation Limited. Complainant. vs Mukunddas s/o Madanlal Mantri Respondents/ and another. Resp.No.1 is orig. accused. ---- Shri G.K. Thigale, Advocate, for the applicant. Shri P.K.Lakhotiya, Advocate, for Resp. No. 1. Shri V.G.Shelke, A.P.P. for Respondent No. 2. ---- Coram : Shrihari P. Davare, J. Date : 26th April, 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 24.6.2009, rendered by learned Judicial Magistrate, First Class, Court No.3, Beed, in S.C.C. No.1755 of 2002, thereby acquitting respondent No.1 herein (original accused) of the offence punishable under Section 138 of the Negotiable Instruments Act. 2 criap-3874.09 03. Briefly stated, the facts of the case are that the complainant is the Maharashtra State Cooperative Marketing Federation Ltd., having its branch office at Beed, and it deals in agricultural products, including sale of fertilizers. It is alleged that the accused is the proprietor of Balaji Krushi Sevan Kendra, New Mondha, Beed, and he purchased fertilizers of Rs.15,47,900/= on credit from complainant. Accordingly, when the complainant made a demand of the said amount in August 2002, the accused issued cheque in favour of the complainant. bearing No. 398401 dated 14.8.2002, for Rs. 15,47,590/-, drawn on Vaidyanath Urban Co-operative Bank, branch Beed, However, when the complainant presented the said cheque for encashment purpose through the Central Cooperative Bank, Branch Beed, the same was dishonoured and returned unpaid to the complainant on 16.8.2002 with endorsement "funds insufficient" which was received by complainant on 19.8.2002. The complainant, therefore, issued demand notice on 26.8.2002 to the accused, calling upon him to repay the said amount of cheque of Rs.15,47,590/=. The accused received the said notice on 9.9.2002, but allegedly gave 3 criap-3874.09 false reply to the same and did not comply with the requisitions contained therein, and hence, the complainant filed complaint under Section 138 of the Negotiable Instruments Act, against the accused. The accused appeared in the matter and pleaded not guilty and claimed to be tried. 04. To substantiate its case, the complainant examined one Mohammad Haji s/o Kasim Saheb Sache, working as Deputy Manager (Finance), whereas the accused put forth his defence through cross examination of the said witness, as well as examined one witness in defence, namely, Ashruba Yadav, who is the ex-employee of the complainant Federation, and also put forth his defence through his statement recorded under Section 313 of the Code of Criminal Procedure, and written statement in support thereof. 05. After considering the evidence adduced and produced by the complainant, as well as by the accused, and also considering rival submissions advanced by the learned counsel for the parties, the learned trial court arrived at a conclusion 4 criap-3874.09 that the disputed cheque was not issued by the accused towards discharge of legally enforceable debt/liability, and consequently, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the complainant has filed present application seeking leave to file appeal challenging the same. 06. At the outset, considering the oral evidence of the complainant and also considering the cheque in question produced by the complainant (Exh.63), cheque return memos issued by the concerned bank (Exhs.64 and 65),copy of demand notice issued by complainant (Exh.66), registered postal receipt thereof (Exh.67) and registered postal acknowledgment (Exh. 68), apparently there is presumption in favour of complainant u/Ss.118(a) and 139 of Negotiable Instruments Act, that the cheque in question was issued by the accused towards discharge of debt/liability, partly or in whole. However, said presumption is rebuttable by the accused and the standard of proof required therefor, is on preponderance of probability. 5 criap-3874.09 07. In the said context, it is the defence of the accused that he issued cheque in question as blank cheque on 25.5.2001 in favour of the complainant as security and on that day, there was no existing legally enforceable debt/liability of the complainant against the accused and the complainant misused the said cheque. To substantiate the said defence, the accused not only cross-examined the complainant, but also examined one Ashruba Yadav as DW-1, who was employee of the complainant federation itself, who stated that the accused had placed purchase order for fertilizers on credit, before kharip season, and on the order of the District Marketing Officer, said Mr. Yadav obtained two cheques from the accused. It has further come in his evidence that he put his signature on 25.5.2001 on Exhibits 125 and 126, which were the counter- slips of the said two cheques given by the accused to DW-1 Yadav, and the alleged cheque at Exhibit 63 is in respect of counter slip at Exhibit 126. Moreover, said DW-1 Ashruba Yadav also stated that the accused gave a letter (Article B), along with the said two cheques. This letter contains recital 6 criap-3874.09 that two undated blank cheques bearing Nos. 398401 and 398402 were given by accused to the complainant. 08. While discussing the evidence on record in that respect, the learned trial court observed that considering the testimony of DW-1 and the counter-slip of the alleged cheque at Exhibit 126, it is evident that on 25.5.2001, the accused had issued blank cheques and the disputed cheque is one of those cheques, and the said disputed cheque was issued as per prevailing market custom, and the said observations cannot be faulted with. 09. Moreover, the contents of the written statement given by the accused, while recording his statement under Section 313 of the Code of Criminal Procedure, are in consonance with the defence put forth by him. Accordingly, it is apparent that the accused has discharged the burden on the preponderance of probability and thus rebutted the presumption raised against him under Sections 118(a) and 139 of the Negotiable Instruments Act. 7 criap-3874.09 10. Hence, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused, on 14.8.2002 and that the accused issued cheque in question towards discharge of legally enforceable debt/liability, and hence, in the said context, learned trial court rightly observed that burden was on the complainant to prove that from 25.5.2001 onwards, the accused purchased fertilizers from the complainant-federation and in pursuance of that, he issued blank cheques. However, the complainant in his evidence simply stated that the accused owed Rs.15,47,590/= to the Federation and when the complainant demanded the balance amount in the month of August 2002, the accused issued the cheque in question. 11. Besides that, the complainant produced six copies of account extract along with list Exhibit 54. However, the trial court in its order passed below Exhibit 132 observed that these copies were not proved as per the Evidence Act, and plea of the 8 criap-3874.09 complainant to exhibit those copies of account extract was rejected, observing that the originals were in the custody of the complainant, but it had not produced the same and adverse inference was drawn that had the originals been produced, the same would have gone against the interest of the complainant. It was also observed that the complainant did not produce any document to show that it sold fertilizers to the accused on credit, from 25.5.2001 onwards and that the alleged cheque was issued by the accused in that respect. 12. As regards the production of account extracts, it is apparent that the complainant produced six pages of account extract through his testimony, stating that those bore signatures of Dist.Marketing Officer, with seal of the Marketing Federation on each page, and calculations and contents therein are true and correct, and accordingly, the complainant requested the trial court to exhibit those six documents. However, Advocate for the accused objected for exhibiting those documents, since those were not original one, and hence, trial court observed that objection can be decided at the final stage. 9 criap-3874.09 13. As stated earlier, the complainant preferred an application (Exh.132) and requested the trial court to exhibit the said account extract furnished on behalf of the complainant on 10.5.2007 along with list Exhibit 54. The accused opposed the said application, and on considering the rival submissions, the learned trial court rejected the said application, vide order dated 17.6.2009, observing that the documents sought to be exhibited were neither having formal proof as contemplated under Section 294 of the Code of Criminal Procedure, nor public documents, nor were admitted by the accused. 14. Learned counsel for the complainant attacked the said order passed by learned trial court on 17.6.2009 below Exhibit 132, and contended that the account extracts produced by the complainant were not exhibited and read in evidence by the learned trial court, which ultimately resulted in acquittal of the accused, and therefore, submitted that the present application seeking leave to file appeal, be allowed. 10 criap-3874.09 15. However, it is apparent from the testimony of the complainant himself, and the objections raised by the learned counsel for the accused, that the account extracts, which were produced by the complainant for being exhibited, were not the original and it is also apparent from the observations made by the learned trial court in the impugned judgment dated 24.6.2009, and more particularly in paragraph 14 thereof, that the complainant produced six copies of account extracts along with list Exh.54, but those copies were not proved as per the Evidence Act, and therefore, the order was passed below Exhibit 132, on 17.6.2009, rejecting the plea of the complainant to exhibit the copies of the said documents, observing that although originals were in the custody of the complainant, the same were not produced and, therefore, adverse inference was drawn by the trial court against the complainant. Hence, it is apparently clear that the complainant did not produce original accounts, but produced only copies thereof, which were rightly not exhibited by the trial court, as per order passed below Exhibit 132. 11 criap-3874.09 16. Moreover, complainant had every opportunity to challenge the order dated 17.6.2009 passed passed by the learned trial judge on Exhibit 132, before the appropriate forum, but the complainant did not avail such opportunity, and hence, now the complainant cannot make any grievance that the account extracts were not exhibited and were not read in evidence and the same ultimately resulted into acquittal of the accused. 17. Apart from that, it is apparent from the record that the complainant did not produce any document to show that the federation sold fertilizers to the accused, on credit, on 25.5.2001 onwards, and more particularly on 14.8.2002 when the disputed cheque was allegedly issued by the accused to the complainant. Hence, the learned trial court has rightly observed that the complainant failed to prove and establish beyond reasonable doubt that the cheque in question bearing No. 398401 dated 14.8.2002 for Rs.15,47,590/= was issued by the accused towards discharge of legally enforceable debt/liability, partly or in whole, and consequently, acquitted the accused rightly, for the offence punishable under Section 12 criap-3874.09 138 of the Negotiable Instruments Act, and no interference therein is warranted, in the appellate jurisdiction. 18. In the circumstances, the view adopted by the trial court, after assessing and scrutinizing the evidence, while acquitting the accused, is a possible view and the said view does not appear to be perverse and even the reasoning given therefor cannot be faulted with, and the present application, therefore, deserves to be rejected. 19. Hence, present application stands dismissed. Leave to file appeal is refused. Record and Proceedings be sent back to the concerned court. pnd/criap-3874.09 (Shrihari P. Davare, J.)