1 crap3736.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3736 OF 2010 WITH CRIMINAL APPLICATION NO. 3737 OF 2010 Shriram Transport Finance Co. Ltd. ...Applicant VERSUS Kaduba Bhagaji Lahane (Patil) ...Respondent ..... Shri S.S.Patil, advocate for applicant Respondent absent, although served. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 22 nd March, 2011 PER COURT : 1 Heard Shri S.S.Patil, learned counsel for the applicant. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment 2 crap3736.10 and order of acquittal dated 7.6.2010, rendered by the learned Judicial Magistrate, First Class-2, Aurangabad in Summary Criminal Case No. 6017 of 2005, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 The factual matrix of the matter is as follows :- The complainant is the Company, registered under the Companies Act, 1956, having its registered office at Chennai and Divisional Office at Aurangabad and is engaged in the business of financing vehicles under the hire purchase agreement in the name of 'Shriram Transport Finance Co. Ltd.'. 4 It is alleged that the accused approached the complainant for finance to purchase the vehicle bearing registration No. MH-21/6480 under hire purchase agreement. The application of the accused was considered and the complainant financed for the said vehicle. It is also alleged that on 1.8.2005 the accused issued cheque for Rs.1,46,070/- to the complainant for the clearance of the due amount along with interest, drawn on the State Bank of India, Samartnagar Branch, Aurangabad. Accordingly, the complainant presented the said cheque for encashment. However, the said 3 crap3736.10 cheque was dishonoured and returned unpaid with the endorsement, “insufficient funds” on 4.8.2005. 5 Thereafter the complainant issued legal demand notice to the accused by Registered Post A.D. as well as Under Certificate of Posting, which was received by the accused. However, the accused failed to comply with the requisitions contained therein. Hence, the complainant filed the complaint under Section 138 of the Negotiable of Instruments Act. 6 The accused appeared therein and substance of accusation was put to him, but he pleaded not guilty and claimed to be tried. 7 The complainant examined one witness, namely Sandeep Uttamrao Deshmukh and adduced and produced the oral and documentary evidence. However, the accused neither examined himself nor examined any defence witness, but put forth his case through the cross-examination of the complainant and through his statement recorded under Section 313 of the Code of Criminal Procedure. 8 After scrutinizing and assessing the evidence on record, 4 crap3736.10 and also considering the rival submissions advanced by the parties, the Trial Court acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, holding that the cheque in question was not issued by the accused towards repayment of legally recoverable debt. 9 Being aggrieved and dissatisfied by the said judgment and order dated 7.6.2010, the applicant (original complainant) has preferred the present application seeking leave to file appeal. 10 As stated herein above, the complainant examined witness Sandeep Uttamrao Deshmukh and adduced the oral evidence, as well as produced the documents on record, comprising the cheque in question, agreements executed by the accused at Exhs. 21 and 35, demand notice and account extract Exh.26, etc. 11 Accordingly, considering the oral evidence of the complainant and the afore said documents, presumption is raised under Sections 118 and 139 of the Negotiable Instruments Act in favour of the complainant that the accused issued the disputed cheque to the complainant towards the discharge of debt. 12 Thereafter, the question arises whether the accused 5 crap3736.10 rebutted the said presumption. In the said context, the defence of the accused is that there was no existence of legally enforceable debt and denial of service of demand notice. 13 Admittedly, the accused neither examined himself nor examined any witness in support of his defence, but put forth his defence through the cross-examination of the complainant and through his statement recorded under Section 313 of the Code of Criminal Procedure. 14 It has also come on record that the signature on the cheque in question Exh.19 is in different ink. Moreover, it also appears that there are material differences at 5 to 6 places in the two agreements produced on record at Exhs. 21 and 35. Hence, it is apparent that considering all the said aspects, the accused has rebutted the said presumption on preponderance of probability. 15 Hence, the burden is shifted upon the complainant to prove and establish that there existed legally enforceable/recoverable debt against the accused and the cheque in question was issued towards the discharge of the said legally enforceable debt, beyond reasonable doubt. 6 crap3736.10 16 In the said context, it is material to note that the cheque in question Exh. 19 was issued for the amount of Rs. 1,46,070/-. However, the account extract produced by the complainant discloses as under :- Amount shown as due in column no.6 on 27.8.2005 Rs. 1,01,160/- Amount shown as overdue charges in column no.11 Rs. 33,074/- Amount shown as insurance expenses till 7.1.2005 Rs. 6,996/- Amount shown as legal and R.T.O. Expenses Rs. 4,000/- ----------------------------- Total : Rs. 1,45,230/- ----------------------------- 17 Hence, curiously enough, the amount due as shown in the account extract is less i.e. Rs.1,45,230/- and amount of cheque Exh. 19 in question is more i.e. Rs. 1,46,070/-. Therefore, the Trial Court has rightly held that the disputed cheque was not issued towards the legally enforceable/recoverable debt and rightly dismissed the complaint. 7 crap3736.10 18 Besides that, after assessing and analysing the evidence on record, the view adopted by the Trial Court regarding acquittal of accused, is a possible view and same does not appear to be perverse. Moreover, the reasoning adopted by the Trial Court while acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act also cannot be faulted with, and hence, no interference therein is warranted in the appellate jurisdiction. 19 In the result, present application stands dismissed accordingly. . (SHRIHARI P. DAVARE), JUDGE. dbm/crap3736.10