1 crap2346.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2346 OF 2011 Sanjay Babasaheb Tambe ...Applicant (Orig.complainant) VERSUS Dr. Prashant Jalindar Tembak ...Respondent (Orig.accused) ..... Shri B.N.Magar, advocate for applicant Shri V.D.Sapkal, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9th December, 2011 PER COURT : 1 Heard respective learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order of acquittal, dated 22.3.2011, rendered by the learned 4 th Judicial Magistrate, First Class, Aurangabad in S.C.C. No. 8140 of 2008, thereby acquitting the respondent (original accused) for the 2 crap2346.11 offence punishable under Section 138 of the Negotiable Instruments Act. 3 The parties, herein after referred to as per their original status, “the complainant” and ”the accused”. 4 The factual matrix of the matter is as follows :- The complainant claims to be the Proprietor of Mangalmurti Pathology at Samarthnagar, Aurangabad and also claims that previously he was the Proprietor of Ashtavinayak Pathology and Laboratory, Aurangabad. The complainant was well acquainted with the accused and they had cordial relations with each other. 5 It is alleged that due to some financial problems of the accused, he approached the complainant for hand loan. Accordingly, the complainant gave hand loan to the accused and the accused assured to repay the same within one month. It is also alleged that after one month, the complainant demanded Rs. 1,38, 802/- to the accused and in discharge of that liability, the accused issued a cheque bearing No. 508135, dated 1.9.2008, signed by the accused, for Rs.1,38,802/-, to the complainant. Accordingly, the complainant 3 crap2346.11 presented the said cheque for encashment purpose through his bank on 8.10.2008. However, the said cheque was dishonoured and returned unpaid with the endorsement, “insufficient funds”, along with cheque return memo. Hence, the complainant issued statutory legal notice to the accused on 17.10.2008. The accused received the said notice and even sent reply to the said notice on 23.10.2008. However, the accused failed to pay the cheque amount within the stipulated period from the date of receipt of the said notice. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. 6 Accordingly, process came to be issued against the accused and the accused appeared in the said complaint. His plea was recorded and he pleaded not guilty and claimed to be tried. 7 To substantiate his case, the complainant examined himself, and accordingly, adduced oral evidence as well as produced documentary evidence; whereas the accused neither examined himself nor examined any defence witness, but put forth his case through the cross-examination of the complainant and his statement recorded under Section 313 of the Code of Criminal Procedure. 4 crap2346.11 8 At the out set, the complainant filed his affidavit in examination in chief and adduced oral evidence as well as produced documentary evidence, such as disputed cheque in question (Exh. 17), cheque deposit receipt (Exh.18), cheque return memo (Exh.19), acknowledgement receipt (Exh.20), registered postal acknlwledgement receipt (Exh.21), copy of notice, dated 17.10.2008 (Exh.22), reply sent by the accused to the complainant through Shri B.R.Pande, advocate on 23.10.2008 (Exh.23) and report of Ashtavinayak Pathology Laboratory on its letter pad, dated 22.2.2007 (Exh.33). 9 Considering the oral and documentary evidence, adduced/produced by the complainant, it is apparent that the initial presumption is in favour of the complainant under Section 118 (a) and 139 of the Negotiable Instruments Act that the accused issued disputed cheque in question towards discharge of liability partly or in whole. However, admittedly the said presumption is rebuttable under Section 139 of the Negotiable Instruments Act, since it is a reversible presumption and the test required therefor by the accused is of preponderance of probability and not of persuasive nature. 10 In the said context, the defence of the accused is that in July, 2007, he removed the complainant from job of Laboratory 5 crap2346.11 Technician, as he was committing mistakes and was giving false reports. The accused had given a cheque to the complainant for withdrawing amount of Rs.1,318/-. However, the complainant told him that the said cheque was misplaced. As the said amount was small, the accused did not bother for the same, but subsequently the complainant misused the said cheque. 11 Admittedly, 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. 12 On perusal of the cross-examination of the complainant, it is material to note that the complainant admitted therein that he has not filed any document on record to show that he is proprietor of Ashtavinayak Pathology and Laboratory, as well as he has not filed on record the registration certificate of Ashtavinayak Pathology and Laboratory. Moreover, he has also stated that no such document has been filed on record to show that account is maintained in State Bank of Hyderabad, Waluj in the name of “Ashtavinayak Pathology and Laboratory” by him. He also further admitted that since October, 2007 he has no concern with the Ashtavinayak Pathology Lab and Hospital. 6 crap2346.11 13 The accused also put forth his defence to the complainant in the cross-examination that the complainant scratched the original amount mentioned in the cheque of Rs.1,318/- and made overwriting on the same and mentioned Rs.1,38,802/-, but same was denied by him. It was also suggested to him that he has written the entire contents of the said cheque, but same was also denied by him. In the said context, a bare perusal of the disputed cheque in question shows that whitener has been applied at one place between figures 1 and 3 in the cheque amount in the figures of the said cheque. Although the said cheque is cross cheque, there appears signature on the reverse side thereof and no plausible explanation is given by the complainant in that respect. Moreover, said cheque is in the name of Ashtavinayak Pathology Laboratory having date thereon 1.9.2008. However, the complainant has admitted in the cross- examination that he has no concern with the Ashtavinayak Pathology and Laboratory since October, 2007, and therefore, question arises how the said cheque was issued in September, 2008, allegedly by the accused in the name of Ashtavinayak Pathology and Laboratory. Moreover, as admitted by the complainant, he has not produced any document/registration certificate of Ashtavinayak Pathology and Laboratory on record to show that he is proprietor thereof. Hence, apparently, the defence raised by the accused appears to be 7 crap2346.11 probable and the accused has established the same on preponderance of probability. 14 Hence, in this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused on the date of issuance of cheque and the disputed cheque in question was issued by the accused to the complainant towards discharge of said legally enforceable debt/liability partly or in whole. However, the complainant has not produced any cogent evidence to prove and establish the same beyond reasonable doubt. Pertinently, there is no averment in the complaint, as to how much amount of hand loan was lent by the complainant to the accused. Moreover, although it is gathered from the evidence of the complainant that the complainant handed over the amounts to the accused at different times in phases, but no oral or documentary evidence has been adduced/produced by the complainant in that respect. 15 It is, therefore, apparent that the complainant has miserably failed to establish and prove beyond reasonable doubt that there existed legally enforceable debt/liability of Rs.1,38,802/- against the accused on the date of issuance of cheque i.e. 1.9.2008 and the accused issued the disputed cheque in question towards 8 crap2346.11 discharge of said debt/liability partly or in whole, and hence, the learned Trial Court has rightly acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act. 16 Having the comprehensive view of the matter, it is apparent that after scrutinizing and analysing the evidence on record, the view adopted by the learned Trial Court while acquitting the accused is a possible view and same does not appear to be perverse, and hence, no interference therein is called for in the appellate jurisdiction therein, and therefore, present application deserves to be rejected. 17 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused and present application stands disposed of accordingly. R. and P. be sent back to the concerned court. . (SHRIHARI P. DAVARE), JUDGE. dbm/crap2346.11