1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2924/2010 Nandlal s/o Madanlal Zawer Applicant V E R S U S The State of Maharashtra and another. Respondents Shri Rahul R. Karpe, Advocate for applicant. Shri S.G. Nandedkar, APP for respondent No.1 Shri P.M.Bidada Advocate for the respondent No.2. --- CORAM : SHRIHARI P. DAVARE, J. DATE : 3 rd MAY, 2011 --- PER COURT : 1. Heard 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 dated 25.3.2010 rendered by learned Judicial Magistrate First Class, Rahuri in STC No.927/2008, thereby acquitting respondent/original accused for the offence punishable under section 138 of Negotiable Instruments Act. 2 3. Briefly stated case of the complainant is that : The complainant is Proprietor of the registered Proprietary firm and dealing with business of onion and allied products. It is alleged that accused purchased goods on credit and was liable to pay outstanding amount of Rs.72,406/- with interest to the complainant on 18.8.2008. Hence, accused issued disputed cheque bearing No.337548 dated 15.4.2008 for Rs.25,000/- to the complainant towards part payment of outstanding amount. The complainant presented said cheque for encashment purpose however, same was dishonoured and was returned unpaid along with bank return memo bearing endorsement ‘insufficient funds’. Hence, complainant issued demand notice to the accused on 18.8.2008 through Advocate and demanded the cheque amount within 15 days from the date of receipt of the notice. It is alleged that said demand notice was received by accused on 22.8.2008 however, accused failed to repay said cheque amount nor replied to the said notice. Hence, complainant filed complaint against accused under section 138 of Negotiable Instruments Act before trial 3 Court. Accused appeared therein and his plea was recorded. He pleaded not guilty and claimed to be tried. 4. I have perused the impugned judgment and order dated 25.3.2010 as well as scrutinized the record and proceeding with the assistance of learned counsel for the parties. 5. The complainant namely Madanlal Zawer examined himself to support the contentions in the complaint whereas accused did not examine himself nor examined any defence witness but put forth his defence through cross examination of the complainant and also through his statement recorded under section 313 of Code of Criminal Procedure. 6. The complainant filed affidavit of evidence in view of examination-in-chief and also produced disputed cheque in question at Exh.14, Bank return memo at Exh.15 and 16 respectively, copy of demand notice dated 18.8.2008 at Exh.17, postal receipt thereof at Exh.18, registered postal acknowledgment thereof at Exh. 19 and computerized account extract at Exh.22. Accused has produced hand written extract for the period 2007-2008 at Exh.37. 4 Accused has also produced cash receipt for Rs.41,442/- dated 29.6.2007 and receipt for Rs.50,000/- dated 10.7.2007 at Exh.34 and 35 respectively. Accordingly, considering the oral evidence of the complainant and also considering the aforesaid documents produced by complainant, initial presumption under section 118 (a) and 139 of Negotiable Instruments Act is in favour of the complainant that accused issued the disputed cheque in question to the complainant towards the discharge of liability/debt. However, said presumption is rebuttable by the accused and standard of proof required therefor is on the preponderance of probability. Hence, question arise whether accused has rebutted the said presumption raised against him under section 118 (a) and 139 of Negotiable Instruments Act. 7. In the said context, accused put forth his defence through cross examination of the complainant and also through his statement recorded under section 313 of Code of Criminal Procedure as mentioned herein above and produced above referred two receipts on record at Exh.34 and 35 respectively. The 5 defence of the accused is that, in the year 2006 he gave three cheques to the complainant as security and disputed cheque in question is one of the said cheques which was mis-used by the complainant. He also stated that he has repaid the amount of Rs. 94,000/- with interest and complainant has filed false case against him. It is the contention of the accused that he has made cash payment to the complainant of Rs.41,442/- on 29.6.2007 and Rs. 50,000/- on 10.7.2007 and complainant issued receipts therefor and complainant has admitted in the cross examination about the said payments made by the accused to him in cash. Complainant also admitted in the cross examination that till 10.7.2007 only transaction took place between himself and accused. Hence, considering the said admissions, it is apparent that since 10.7.2007 no further transaction has taken place between the complainant and accused; since accused has paid more than outstanding amount on that day as mentioned herein above. 8. Considering the said aspects, it is apparent that, the accused has probabilized his defence and he has discharged the 6 burden on preponderance of probability. 9. Hence, the burden was shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused and accused issued cheque in question towards discharge of legally enforceable debt partly or in whole and standard of proof expected from the complainant in that respect is beyond reasonable doubt. 10. In the said context, the complainant produced two account extracts at Exh.22 and Exh.37. However, on perusal of account extract Exh.22, it does not show that amount of Rs.72,406/- was outstanding with the accused on 10.7.2007, since it is for the year 2008-2009. It appears from the said account extract that amount of Rs.52,406/- was outstanding with the accused on 9.12.2008. However, as mentioned herein above the complainant has admitted in his cross examination that since 10.7.2007 no transaction has been taken place between himself and accused, therefore, learned trial court has rightly observed that said said account extract is not useful for the complainant to prove the alleged existing 7 liability of the accused. 11. As regards another extract of account i.e Exh.37 produced by the complainant which pertains to the year 2007-2008 which shows that amount of Rs.47,156/- was outstanding with the accused. Hence, the complainant has failed to prove with the aid of said account extract that amount of Rs.72,406/- was outstanding with the accused on 10.7.2007 or 18.8.2008 as averred by the complainant in his complaint and therefore, there is variance in his pleadings and evidence and observations made by the learned trial court in that respect cannot be faulted with. 12. Besides, as regards account extract Exh.22, the complainant has made averment in his affidavit of evidence that it is computerized extract and it bears signature thereon, but as regards account extract Exh.37, apparently there is no reference thereof in the affidavit filed by the complainant. Hence, learned trial court rightly observed that it was incumbent upon the complainant to prove hand writing of the person alleged to have written the said extract. In the absence of proof of the handwriting 8 and signature appearing on the account extract, the said account extract cannot be admitted, and there is impediment of section 34 of Indian Evidence Act therefor. 13. Accordingly, it is apparent that the complainant has failed to prove that there existed legally enforceable debt/liability against accused and accused issued disputed cheque in question to the complainant towards discharge of legally enforceable debt/liability partly or in whole, and hence, learned trial court has rightly dismissed the complaint and acquitted the accused for the offence punishable under section 138 of Negotiable Instruments Act and no interference therein is warranted in the Appellate jurisdiction. 14. Moreover 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 there appears to be no flaw in the reasoning adopted therefor. 15. In the result, present application being sans merit stands dismissed. Leave to file appeal stands refused. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE aaa/2924.10 ...