14.appln2938-09 RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2938 OF 2009 IN CRIMINAL APPEAL NO OF 2009 Ashok Vishwanath Phadke .. Applicant Vs Adhik Nivrutti Karande & Anr. .. Respondents Mr. Rahul S. Kate for the Applicant Mr. Pramartak Pathak i/b Uday Warunjikar for Respondent 1 Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 6th AUGUST, 2010 P.C.: 1. The applicant has preferred this application for leave to file appeal against the judgment and order dated 24.03.2009 passed by the learned 6th Additional Judge, Small Causes Court, Pune in Criminal Case No. 388 of 2008. By the said judgment and order, the respondents accused came to be acquitted of the offences under section 138 of the Negotiable Instruments Act, 1881. 2. Briefly stated, the case of the complainant is that he had advanced a loan of Rs. 2 Lacs to the respondent-accused 1 14.appln2938-09 in the month of July 2005. The accused had executed a promissory note Exh. 14 dated 11.07.2005 to that effect in his favour. On 06.11.2007, the accused issued two cheques (Exh. 15 and 16) of Rs. 1 Lac each dated 06.11.2007 in presence of the complainant. The said cheques were not honoured, hence, the complainant sent notice to the accused and because the accused failed to pay the amount within stipulated time, the Complaint came to be filed. 3 The case of the complainant is that he had advanced Rs. 2 Lacs to the accused in the month of July 2005 and the accused had executed a promissory note (Exh 14) to that effect in the month of July 2005. It is pertinent to note that in copy of the notice (Exh 19) as well as in the Complaint (Exh 1), there is no mention at all about any promissory note. The Complaint Exh 1 is totally silent about execution of any promissory note by the accused in favour of the complainant. No explanation has been furnished by the complainant as to why the said fact is not mentioned in the complaint. In such case, the evidence adduced by the complainant PW 1 in respect of promissory note can be said to be an improvement made by the complainant because no such fact has been mentioned in the complaint. If at all the said promissory note had been executed, one fails to understand why such an important piece of evidence or important act of 2 14.appln2938-09 the accused acknowledging his liability does not find place in the Complaint Exh. 1. Total silence regarding this promissory note in the Complaint causes a serious dent in the case of the complainant. 4. The case of the complainant is that the accused had issued two cheques (Exh 15 and 16) on 06.11.2007 in his favour in his presence. He has clearly stated that the contents of the cheques (Exh 15 and 16) were filled up by the accused in his presence on 06.11.2007. However, on perusal of the said cheques (Exh 15 and 16), some strange facts emerge. The cheque (Exh 15) has been signed with blank ink, however, cheque (Exh 16) has been signed with blue ink. If both the cheques were issued at one and same time, they would have been signed by same pen and there would not have been any difference in colour of the ink in both the cheques. The complainant has not given any explanation regarding the difference in colour of the ink. This raises grave doubt in the mind about veracity of the case of the complainant. 5. As far as the two cheques (Exh 15 and 16) are concerned, the complainant has stated that they were filled up by the accused in his presence. However, cheque (Exh 15) bears serial no. 357813 whereas cheque (Exh 16) bears serial no. 357833. There is gap of almost twenty numbers in serial 3 14.appln2938-09 numbers of cheques (Exh 15 and 16). If at all the accused had issued two cheques at one and the same time in favour of the complainant in his presence as alleged by the complainant, then in such circumstances, the cheques would bear consecutive serial numbers. No explanation has been furnished by the complainant in respect of the gap of almost twenty serial numbers in between the two cheques (Exh 15 and 16). 6. In order to clarify all these doubts and ambiguity in execution of promissory note (Exh 14), it was incumbent upon the complainant to examine the witnesses to the promissory note. However, no such witness has been examined by the complainant which would raise adverse inference against the complainant. 7. It is pertinent to note that the defence of the accused is that he lost the cheques as well as blank stamp paper which has been signed by him. Stamp paper on which the promissory note (Ex 14) is typed bears one more signature at the bottom of the back of the page. From this document, it appears that the accused had put his signature on the top 1/4th portion of the back of the stamp paper and again another signature is found at the bottom of the back page of the stamp paper. Looking to the document, there does not 4 14.appln2938-09 appear any reason for the accused to also put his signature at the bottom of the back of the stamp paper. This circumstance also raises doubt in the mind about genuineness of the promissory note. 8. One more circumstance which is required to be noted here is that the complainant is not just an ordinary lay person but he is a bank manager. It is his case that he advanced an amount of Rs. Two Lacs to the accused in the month of July, 2005. However, in his cross-examination, he has admitted that he had not shown the amount allegedly paid to the accused, in his income tax return for the year 2005-2006. On the complainant being questioned, he could not assign any reason why he did not mention the said amount in his income tax return. He has not furnished any justification or explanation for the fact that he has not mentioned the said amount in his income tax returns. This is yet another circumstance which renders the case doubtful. 9. We may make here useful reference to a decision of the Supreme Court in the State of Uttar Pradesh Vs Dinesh, 2009(3) SCALE 345 wherein in case of appeal against acquittal, it has been held as under: "Cr.P. Code 302 - Appeal against acquittal - Held. If two reasonable conclusions are possible on the basis of the evidence on record - the Appellate 5 14.appln2938-09 Court should not disturb the finding of acquittal recorded by trial court." Thus, when two conclusions can be arrived at on the basis of the evidence on record, the conclusion which is favourable to accused should be accepted. 10. Considering overall circumstances and evidence on record in this case, I am of the opinion that the view taken by learned Magistrate is a reasonable and possible view, hence,no interference is called for. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 6 14.appln2938-09 7