1 crap2923.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2923 OF 2010 1 Namdeo s/o Laxman Mhaske ...Applicant (orig. complainant) VERSUS 1 The State of Maharashtra 2 Sahebrao s/o Babanrao Bodkhe ...Respondents (No.2 orig. accused) ..... Shri R.R.Karpe, advocate for applicant Shri , A.P.P. for respondent no.1/State Shri N.C.Garud, advocate for respondent no.2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 25 th April, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 crap2923.10 2 This is an application, preferred by the applicant, seeking leave to file Criminal Appeal, challenging the judgment and order, dated 24.5.2010, rendered by learned Judicial Magistrate, First Class-2, Ahmednagar, in S.T.C. No. 4173 of 2007, thereby acquitting respondent no.2 (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 Briefly stated, the case of the complainant is that the accused is friend as well as relative of the complainant and the accused purchased pulses worth Rs.1,23,550/- from the complainant. Accordingly, in discharge of the said liability, the accused firstly paid Rs.3,550/- on 13.5.2007 by cash. It is alleged by the complainant that the accused agreed to pay the interest for delayed payment at the rate of 18 per cent per annum for the remaining amount and accused issued a cheque bearing No. 750095, dated 13.6.2007 for an amount of Rs. 1,20,000/-, drawn on Ahmednagar Shahar Sahakari Bank Ltd. Branch Station Road, Ahmednagar. The complainant presented the said cheque for encashment purpose through the Ahmednagar Jillha Prathamik Shikshan Sahakari Bank, Main Branch, Ahmednagar and the Ahmednagar District Central Co-op. Bank Ltd., Branch Laxmi Karanja, Ahmednagar. However, the said cheque was dishonoured and was returned unpaid with the endorsement, “insufficient funds”. 3 crap2923.10 Hence, the complainant sent demand notice to the accused on 23.7.2007 by registered post. The said notice was received by the accused on 25.7.2007. However, the accused failed to repay the cheque amount and failed to comply with the requisitions contained in the said notice. Hence, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act. 4 The complainant was examined under Section 200 of the Code of Criminal Procedure and thereafter process came to be issued against the accused. Accordingly, the accused appeared in the said case and plea of the accused was recorded and the accused pleaded not guilty and claimed to be tried. 5 To substantiate the case of the complainant, the complainant examined himself; whereas in support of defence of the accused, the accused examined three witnesses, namely Nana Dongare, Babasaheb Jadhav and Shri Deshmukh, Branch Manager of Ahmednagar Shahar Sahakari Bank. 6 Accordingly, considering the oral and documentary evidence, adduced and produced by the parties on record and also after considering the rival submissions advanced by the learned counsel for the parties, the learned Trial Judge acquitted the accused 4 crap2923.10 for the offence punishable under Section 138 of the Negotiable Instruments Act, by judgment and order, dated 24.5.2010. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant/complainant has preferred the present application seeking leave to file appeal. 7 At the out set, the complainant examined himself and produced disputed cheque in question Exh. 19; the cheque return memos Exhs. 20, 21 and 22 respectively; demand notice dated 27.7.2007 Exh. 23, Regd. Post. A.D. Receipt Exh. 24 and acknowledgment receipt Exh. 25., and therefore, considering the oral evidence and the afore said documentary evidence, it is apparent that initial presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant that the accused issued the disputed cheque in question towards discharge of liability/debt partly or in whole. However, it is the settled legal position that the said presumption is rebuttable and standard of proof required for the said rebuttal by the accused is to be accepted upon preponderance of probability. 8 Keeping in mind the said aspects and coming to the defence of the accused, which he has put forth through cross- examination of the complainant and also examining the above 5 crap2923.10 referred three witnesses and also through his statement recorded under Section 313 of the Code of Criminal Procedure, the defence of the accused is that he issued the cheque for an amount of Rs. 6,000/- to the complainant while discharging the liability of one Mr. Dilip Jadhav and accused himself was not having any transaction with the complainant and the complainant has misused the said cheque by carrying out overwriting thereon. To substantiate the said defence, the accused examined one Mr. Nana Dongare. He stated in his evidence that Mr. Jadhav had taken hand loan of Rs.50,000/- from the complainant before five years with interest at the rate of five per cent per month and said Mr. Jadhav repaid the said loan amount to the complainant, but the complainant was not satisfied and demanded more amount. Hence, in view of the settlement of the said matter, the accused issued cheque of Rs.5,000/- to Rs.6,000/- to discharge the liability of Mr. Jadhav, but the complainant has misused the same by overwriting on the said cheque. He also stated that the accused and the complainant were not having any transaction between each other. 9 Moreover, the accused also examined Mr. Babasaheb Rambhau Jadhav, who has stated in his evidence that one Mr. Dilip Laxman Jadhav, resident of village Nimgaon Wagha, Taluka and District Ahmednagar was in financial need and the complainant was 6 crap2923.10 running the money lending business, and therefore, said Dilip Jadhav took hand loan of Rs.50,000/- from the complainant. However, while making repayment of said hand loan, the accused issued cheque of Rs.6,000/- to the complainant in respect of repayment by the said Dilip Jadhav. However, the complainant has misused the said cheque and filed the false complaint against the accused. 10 Accordingly, both the said witnesses, namely Nana Dongare and Babasaheb Jadhav supported the defence of the accused. Moreover, the accused also examined Mr. Deshmukh, Branch Manager, Ahmednagar Shahar Sahakari Bank Limited, Branch Station Road, Ahmednagar in respect of overwriting on the disputed cheque in question and it has come in his evidence that the disputed cheque Exh.19 has overwriting in the amount written in words. 11 In the said context, the accused also preferred an application before the Trial Court Exh.43 and requested to send the said disputed cheque to the Hand Writing Expert regarding overwriting in the cheque amount as well as disputed initial signature near overwriting. It is submitted that after hearing rival submissions advanced by the learned counsel for the parties, the said disputed cheque in question was sent to the Government Hand 7 crap2923.10 Writing Examiner and report thereof was received on 6.2.2010, which was exhibited as Exh.48. The said report favours the accused and it is opined therein that original amount in figure as well as in words have been found to be over written and even the initial signatures are not made by the accused. However, learned counsel for the applicant herein vehemently attacked on the said report stating that the concerned Hand Writing Examiner was not examined, but still the said report was exhibited and he relied upon the judicial pronouncement of this court in the case of Rakesh Kapoor vs State of Maharashtra, reported at 2009(1) Bom.C.R. (Cri.) 834. 12 However, even assuming for the sake of assumption the proposition put forth by the learned counsel for the complainant and even keeping aside the Hand Writing Expert’s report, it is apparent that the accused has proved his defence on preponderance of probability through the cross-examination of the complainant, as well as by examining the witnesses, namely Nana Dongare, Babasaheb Jadhav and Shri Deshmukh, Branch Manager and also through his statement recorded under Section 313 of the Code of Criminal Procedure and discharged his burden on preponderance of probability and rebutted the presumption raised against him under Sections 118 and 139 of the Negotiable Instruments Act. Hence, it 8 crap2923.10 was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable liability/debt against the accused. 13 In the said context, the complainant produced one receipt Exh.52 on record, which was considered by the Trial Court, which discloses that accused purchased wheat worth Rs.85,750/- and Jawar worth Rs.37,800/- from the complainant on 13.5.2007 and the said receipt bears stamp of the complainant’s shop and signature of the complainant. According to the complainant, the said receipt was issued by him in his own hand writing. However, the learned Trial Judge has observed that during cross-examination the complainant has admitted that he never used to maintain the register regarding grocery transactions, nor he maintained any register regarding purchase and sale of grocery articles, as well as he has admitted that he has not produced any document on record to show that he is running grocery shop as well as further admitted that he does not have acknowledgment to show that accused has received the grocery articles. Considering the admissions given by the complainant, the Trial Court observed that it is clear that the complainant has not maintained any record regarding purchase and sale of grocery transactions and he has also not produced any receipt to show that the accused has received concerned grocery 9 crap2923.10 articles from him. 14 On the afore said background, as regards receipt Exh.52, the Trial Court, after perusal thereof, observed that it bears the hand writing of the complainant on a plain paper, meaning thereby that the complainant could have any time prepared the same and signed the same and the Trial Court further observed that it is surprising that when a person sold grocery articles worth Rs.1,23,550/-, but did not take signature of purchaser regarding receipt of concerned articles and it is very unnatural because Rs.1,23,550/- is a substantial amount. The learned Trial Judge further observed that at the same time, it is very material that if the complainant never used to maintain any record regarding grocery transaction, as admitted by him, then the question arises why he has prepared the very receipt Exh.52 specifically in respect of the disputed transaction, and consequently, learned Trial Judge came to the conclusion that it reveals that the complainant has prepared the said bogus receipt Exh.52, and apparently there is no flaw in the reasoning and the conclusion drawn by the Trial Court, and consequently, the complainant herein failed to prove and establish beyond reasonable doubt that there existed any legally enforceable debt against the accused, and the accused issued the cheque in question to the complainant towards discharge of legally enforceable debt/liability. 10 crap2923.10 15 In the circumstances, the view adopted by the learned Trial Judge while acquitting the accused, after scrutinizing and appreciating the evidence on record, is a possible view and same does not appear to be perverse. Moreover, the reasoning given therefor also cannot be faulted with, and hence, present Criminal Application bears no substance and same deserves to be rejected. 16 In the result, present Criminal Application stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2923.10