1 crapn3020.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3020 OF 2010 Balaji @ Balasaheb s/o Dattatrao Dongre, Age: 51 years, Occ: Business, R/o. New Mondha, Nanded, Tq. & Dist. Nanded. ...APPLICANT VERSUS Bhagwati Trading Company, Through it's Proprietor Sow. Sushila w/o Satyanarayan Soni, Occ: Business, R/o. "Pandurang Nivas", Mitra Nagar, Behind Super Bazar, New Kautha, Nanded, Tq. & Dis. Nanded. ...RESPONDENT ... Mr. H.V.Patil,, Advocate holding for Mr. D.Y. Nandedkar, Advocate for applicant. Mr. Vijay Sharma, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 17TH FEBRUARY, 2011 PER COURT : . Heard learned Counsel for the applicant and learned Counsel for the respondent. 2 crapn3020.10 2. This is an application filed by the applicant, seeking leave to appeal against the judgment and order dated 07-05-2010 passed by the 5th Joint Judicial Magistrate, First Class, Nanded in Summary Case NO. 597 of 2009. 3. Learned Counsel for the applicant invited my attention to the grounds taken in the application, which are as follows : "I. The impugned Judgment and Order is against the facts of the case and documents on record. II. The learned Judge erred in holding that, the complainant/applicant do not discharged the burden of proof with respect to legally enforceable liability whereas per the provision of Section 139 of the Negotiable Instruments Act presumption is to be drawn in favour of the Holder of the Cheque/Complainant. 3 crapn3020.10 III. The learned Judge failed to appreciate the fact that, the Respondent/accused do not entertained in to the witness box to rebut the presumption under Section 118 and 139 Negotiable Instruments Act. IV. The learned Judge failed to appreciate the fact that, witness examine by the Respondent/Accused was unaware of the defence taken her, it goes to show that defence of the Respondent/Accused is concocted one and testimony of such witness is not reliable. V. The learned Judge failed to appreciate the fact that, spit of service of demand notice respondent/accused failed to reply the same, and during the course of the trial took the false defence and concocted the story of giving the disputed cheque to somebody else who is stranger to the Appellant/complainant. VI. The learned Judge failed to 4 crapn3020.10 appreciate the fact that, disputed cheque returned unpaid as payment stopped by drawer, but in the defence, accused does not clarify as to why the payment was stopped those itself falsifies the story of the Respondent/Accused. VII. The learned Judge failed to appreciate the fact that, it is case of the Appellant/Complainant that the amount was due and towards this due amount Accused/respondent had issued the subject cheque, therefore, question of entry in the cash book doesn't arise and on that ground case of the Applicant/Complainant cannot be turned down. VIII. The learned Judge failed to appreciate the fact that "Balaji Shakkarge" is allegedly "munim" of the Respondent/Accused firm, and it is but natural that he would not come before the court to depose against his employer though he agreed to do so, therefore adverse inference under section 114 of the 5 crapn3020.10 Indian Evidence Act, cannot drawn if the Applicant/Complainant failed to examine him before the Court. IX. The learned Judge unnecessarily emphasised on the entries of Adatwahi and Khatawahi whereas as the provisions of the Negotiable Instruments Act postulates that holders of the cheque is holder in due course, unless the contrary is proved. Hence in the case in hand mere statement of the accused do not prove contrary by leading evidence of Munim "Balaji Shakkarge" who is the only person who can clarify the picture of reality interne sense. X. Learned Judge wrongly interpreted the provisions of section 34 of the Indian Evidence Act in respect of maintaining the Account in regular course of business. VII. The learned Judge erred in presuming the applicant as holder in due course as per provisions of Negotiable Instruments Act, which 6 crapn3020.10 respondent failed to rebut and came to the erroneous conclusion and please to acquit the respondent. XI. The impugned Judgment and order is otherwise bad in law." 4. In addition to that, learned Counsel for the applicant submitted that the trial Court has accepted the evidence of complainant in Para-8 of the impugned judgment that receipts below Exhibit-13 and 14 are issued in favour of the accused-firm. According to learned Counsel for the applicant, both the said receipts bear signature of one Balaji Shakkarge, who is office bearer (Munim) of the accused-firm. Therefore, learned Counsel for the applicant would submit that, the observation of the trial Court that said Balaji should have been examined by the complainant, is erroneous approach. In fact, the case of the complainant is that Balaji is working with the respondent-accused, therefore, the trial Court should not have concluded that the said witness 7 crapn3020.10 should have been examined by the complainant. According to learned Counsel for the applicant, once the case of the complainant is accepted that the bills were issued to the respondent accused, in that case, the respondent- accused should not have been acquitted. Counsel further submitted that the defence taken by the respondent-accused that four cheques were isssued to one Sheshrao Dongre, is not supported by any documentary evidence to show that four cheques were given as a security to the said Sheshrao Dongre towards some transaction between the respondent and said Said Sheshrao Dongre. Counsel further submitted that application dated 14-02-2009, if perused carefully, it only shows that the said application was given in the police station. However, there is no any specific date mentioned on the said application, when the said application was received by the concerned police station. Learned Counsel further submitted that once the complainant brought on record the bills 8 crapn3020.10 Exhibit Nos.13 and 14, and also other documents including the intimation received from the bank, notice given to the respondent and also cheques which are dishonoured, in that case, burden was on the accused to prove that the said cheques were not issued to the complainant and given as security to Sheshrao Dongre in some transaction. However, the respondent utterly failed to bring anything on record about the transaction between the said Sheshrao Dongre and the respondent. Therefore, learned Counsel for the applicant would submit that this application deserves to be allowed. 5. On the other hand, learned Counsel for the respondent submitted that the complainant utterly failed to prove Exhibit Nos. 29 and 30 i.e. extract of Adat-Wahi and Khatawani-Wahi. On the contrary, the trial Court has concluded in Para-11 of the impugned judgment that the accounts in both these documents do not tally with each other. These two documents do not bear regular page 9 crapn3020.10 numbers. Entries on these extracts do not bear dates. 6. Learned Counsel also invited my attention to the cross examination of Gangadhar Vishwas, who used to maintain the accounts of the complainant. Learned Counsel further submitted that both the entries were taken by said Gangadhar Vishwas. It has been accepted by the trial Court that notice Exhibit-64 issued by the respondent to Sheshrao Dongre is dated 09-02-2009. Thereafter, on 14-02-2009 the application was given in the police station stating therein that said Sheshrao Dongre is likely to misuse four blank cheques given to him towards security. Learned Counsel further invited my attention to the contents of the notice to demonstrate that there was transaction between Sheshrao Dongre and the respondent. Counsel further submitted that if Exhibits 13 and 14 are carefully perused, the entire alleged amount in two transactions would be roughly Rs.8,00,000/-. However, four cheques of Rs.16,00,000/- have been 10 crapn3020.10 presented before the bank. That itself shows that the complainant has no case and all the documents prepared by him are fabricated and concocted. Counsel further submitted that burden of proof which the accused is required to be discharged under Section 139 of the Negotiable Instruments Act is only by preponderance of probabilities and it is not necessary to prove the case by strict proof beyond reasonable doubt on record. Therefore, the Counsel would submit that since the possible view is taken by the trial Court, this Court may not interfere in the impugned judgment. 7. I have perused the impugned judgment and order and also original record made available. The case of the complainant appears to be that turmeric was purchased by the respondent from the complainant and two bills issued on 17-02-2009. The amount of one bill is Rs.3,70,363/- and another transaction appears to be of Rs.4,23,180/-. It is admitted position that four cheques were presented and amount mentioned in four cheques is totaling 11 crapn3020.10 Rs.16,00,000/-. Those cheques were presented in the bank on 18-02-2009 and 19-02-2009. I find considerable force in the argument of the learned Counsel for the respondent that even if the case of the complainant is taken as it is, at the most, without admitting, it can be said that total transaction would be of the amount of Rs.8,00.000/-. However, four cheques of Rs.16,00,000/- were presented in the bank. This itself shows that alleged transaction between the complainant and the respondent is not genuine and complainant has filed false case. 8. From the documents which were placed on record by the complainant i.e. Adat-Wahi Exhibit-29 and Khatawani-Wahi Exhibit-30 are considered by the trial Court, in Para-11 of the impugned judgment, the trial Court held as under. "On careful perusal of these two extracts, it can be said that these two accounts do not tally with each 12 crapn3020.10 other. Furthermore, these two extracts do not bear regular page numbers. Entries on these extracts do not bear dates. It is the most important factor which is necessary to be considered over here that Gangadhar Vishwas (CW-3), who is the alleged Munim of the complainant and who has allegedly made entries in the books of accounts, has specifically admitted during his cross examination that if a party to a transaction makes payment by cheque, then, entry of the said cheque with its numbers has to be taken in the concerned cash book. He further admits that he has duly made entry of the two disputed cheques in the cash books, but, surprisingly, there is no such entry in respect of the disputed cheques in both the account extracts. The admission given by Gangadhar Vishwas (CW-3) is sufficient enough in the ordinary course of business to believe that no such cheques i.e. the disputed cheques were issued by the accused at the time of alleged transaction. Therefore, I am of the specific view that the complainant 13 crapn3020.10 has not adduced any specific and cogent evidence." 9. Therefore, the documents produced by the complainant on record Exhibits-29 and 30 do not tally with each other. There are no regular page numbers to the said documents. Entries on these extracts do not bear dates. The admission given by CW-3 Gangadhar Vishwas in his cross examination i.e. that if a party to a transaction makes payment by cheque, then, entry of the said cheque with its numbers has to be taken in the concerned cash book. The trial Court has further observed that though CW-3 admits that he has duly made entry of two disputed cheques in the cash book, but, surprisingly, there is no such entry in respect of the disputed cheques in both the account extracts. Therefore, trial Court concluded that said admission given by CW-3 is sufficient enough in the ordinary course of business to believe that no such cheques i.e. the disputed cheques were issued by the accused at the time of 14 crapn3020.10 alleged transaction. 10. The defence taken by the respondent herein- original accused has been considered by the trial Court in Para. Nos. 14 and 15. Upon independent scrutiny of the evidence, I find that the application was given in the police station on 14-02-2009 by the respondent stating therein that the cheques which are issued to Sheshrao Dongre towards security are likely to be misused. There is also reference to the notice dated 09-02-2009 given to Sheshrao Dongre in the said application. It is true that there is no date mentioned by the police officer when he has received that application in the police station. However, the fact remains that such application was given by the respondent in the police station. Counsel for the applicant vehemently argued that if really the application was given on 14-02-2009, in that case, there should have been mention of date by the concerned police station on the said 15 crapn3020.10 document. However, the date is not mentioned and therefore, said document should not have been accepted by the trial Court. 11. In my opinion, it was not within the reach of the respondent to compel or tell the concerned police person to write the date. What was within reach of the respondent was to mention the date on an application and on perusal of the said application, it clearly shows that the said application bears date 14-02-2009. 12. In the present case, possible defence is taken by the respondent and same has been accepted by the trial Court. There are documents brought on record by the respondent-accused showing that intimation given to the police station that four blank cheques were given to Sheshrao Dongre as a security, are likely to be misused. 13. For the above mentioned reasons, in my opinion, I do not find substance in the 16 crapn3020.10 application. The trial Court has taken possible view. If possible view is taken by the trial Court, even if another view is possible on the strength of material brought on record by the complainant, that is no ground for interfering in the judgment and order of the acquittal. Therefore, application seeking leave to appeal stands rejected. 14. Registry to send original Record and Proceedings to the concerned Court, forthwith. sd/- [ S.S. SHINDE, J.] sut/feb11/crapn3020.10