1 crap1851.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1851 OF 2006 Shri Kedareshwar Co-operative Sugar Factory Limited ...Applicant VERSUS Vitthal Pandit Nisarge ...Respondent ..... Shri V.D.Hon, advocate for applicant Respondent absent, although served. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 14 th November, 2011 PER COURT : 1 Heard Shri V.D.Hon, learned counsel for the applicant. Perused the R. and P. with the assistance of the 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 crap1851.06 and order of acquittal dated 3.5.2006, rendered by the learned Judicial Magistrate, First Class, Shevgaon, District Ahmednagar in S.T.C. No. 161 of 2000, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 The parties herein after referred to as "the complainant" and "the accused". 4 Briefly stated, the case of the complainant is that, the complainant is the Cooperative Society and one Ankush Sarjerao Jadhav, who is a labour contractor, has effected agreement with the complainant in the year 1998-99 and availed the advance amounts from time to time. The accused was the guarantor for the said agreement. However, it is alleged that said Ankush Jadhav failed to provide the labourers as per the said agreement. Hence, the complainant demanded the advance amount availed by Ankush Jadhav from the accused. Thereupon, the accused issued cheque No. 796265 for Rs.68,211/-, dated 26.3.2000 drawn on Ahmednagar District Central Cooperative Bank Limited, Branch Bodhegaon, Taluka Shevgaon to the complainant towards the repayment of the said amount. Accordingly, the complainant presented the said cheque for encashment purpose, but same was dishonoured and 3 crap1851.06 returned unpaid due to insufficient funds and the Bank informed the complainant by letter, dated 3.5.2000 accordingly. Thereafter, the complainant issued statutory notice to the accused on 17.5.2000 and demanded the cheque amount. On 20.5.2000 the accused refused to accept the said notice and failed to pay the cheque amount to the complainant. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. 5 Process came to be issued against the accused and the accused appeared in the said complaint and his plea was recorded and he pleaded not guilty and claimed to be tried. 6 To substantiate the case of the complainant, the complainant examined one Ramesh Garje as Superintendent of the complainant as per resolution Exh. 40. As against that, accused examined three witnesses, such as DW1-Ankush Sarjerao Jadhav; DW2-Ankush Sharnagat and DW3-Rajendra Vendekar. Moreover, the statement of accused was recorded under Section 313 of the Code of Criminal Procedure. 7 The complainant adduced oral evidence of Ramesh Garje and produced documentary evidence i.e. cheque in question bearing no. 796265, drawn on Ahmednagar District Central Cooperative 4 crap1851.06 Bank Limited, Branch at Bodhegaon, Taluka Shevgaon for Rs. 68,211/- at Exh.35; cheque return memo at Exh.36, copy of covering letter Exh.37, copy of demand notice, dated 17.5.2000 at Exh.38 and refused envelope at Exh.39. Accordingly, initial presumption is raised in favour of the complainant that the accused issued the cheque in question to the complainant towards discharge of liability partly or in whole under Sections 139 and 118 (a) of the Negotiable Instruments Act. 8 Admittedly, the said presumption is rebuttable and the accused is required to rebut the said presumption on preponderance of probabilities. 9 In the said context, the accused examined three witnesses, as mentioned herein above and also his statement was recorded under Section 313 of the Code of Criminal Procedure. It is the defence of the accused that he never stood as guarantor to Ankush Jadhav for the alleged amount advanced to him and the complainant had obtained blank cheques at the time of execution of agreement and such cheques were obtained by Shri Raut on behalf of the complainant and nothing is due from the accused to the complainant. 5 crap1851.06 10 To substantiate the said defence, defence witness Ankush Sharnagat stated that in the year 1998-99, he along with the accused and others had been to the complainant’s factory and at the relevant time, the complainant obtained blank cheques from them along with other documents, like 7/12 extracts. The evidence of Ankush Sharnagat reveals that he denied the guarantorship either by the accused or by anybody else to the agreement with the complainant. Pertinently, it was incumbent upon the complainant to prove that the accused was guarantor for the agreement effected by Ankush Jadhav, since it is the specific case of the complainant that Ankush Jadhav entered into an agreement with the complainant to provide the labourers and availed amount of advance, but nothing was produced by the complainant on record to that effect. On the contrary, the complainant’s witness Shri Ramesh Garje admitted in the cross-examination that he does not have any documentary evidence to show that the accused was guarantor for the transaction between the complainant and Ankush Jadhav and he expressed his inability to produce the agreement between the complainant and Ankush Jadhav, as well as surety bond of the accused. 11 Thus, it is apparent that the accused has rebutted the presumption raised against him under Sections 139 and 118 (a) of the Negotiable Instruments Act on preponderance of probabilities. 6 crap1851.06 Accordingly, since the accused has rebutted the said presumption, as mentioned herein above, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that the accused issued the cheque in question towards the legally enforceable debt/liability partly or in whole. 12 In the said context, the evidence of another defence witness Rajendra Vendekar, who is the employee of the complainant, is material, and according to him, as per record, an amount of Rs. 59,090/- is shown as outstanding from Ankush Jadhav to the complainant. In that regard, he has also produced the copy of the said account at Exh.91. However, significantly, the cheque in question is for Rs.68,211/-. Hence, the difference in the outstanding amount and the cheque amount makes it clear that the dues were less than the cheque amount. 13 Pertinently, there is nothing on record produced by the complainant to show that either Ankush Jadhav or the accused agreed to charge interest on the outstanding amount and to include it in the principal amount. Besides that, the learned Trial Court has observed that the cheque was issued by Ankush Jadhav by himself for the amount which was due from him to the complainant and the cross-examination of Ankush Jadhav discloses that one cheque was 7 crap1851.06 issued by him to the complainant for the amount which was due from him to the complainant as remaining amount out of the amount availed by him as advance. Accordingly, it is clear that the accused herein was not under any legal liability towards the complainant and the complainant has failed to prove and establish beyond reasonable doubt that the cheque in question was issued by the accused towards the discharge of enforceable debt/liability partly or in whole. Hence, the learned Trial Court has rightly acquitted the accused. 14 In the circumstances, having the comprehensive view of the matter and after scrutinizing and analyzing the evidence on record, the view adopted by the learned Trial Court while acquitting the accused is a probable view to be adopted and the said view does not appear to be perverse, and hence, no interference is called for in the appellate jurisdiction, and therefore, present application deserves to be rejected. 15 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused and present application is disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE, J.) dbm/crap1851.06