IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2398 OF 2011 LOKSEVA MUDRANALAYA THR. SUNIL ALIAS SHEKHAR APPASAHEB VERSUS RAJENDRA APPASAHEB SHINDE WITH CRIMINAL APPLICATION NO. 2399 OF 2011 LOKSEVA MUDRANALAYA THR. SUNIL ALIAS SHEKHAR APPASAHEB VERSUS RAJENDRA APPASAHEB SHINDE WITH CRIMINAL APPLICATION NO. 2400 OF 2011 LOKSEVA TRADERS THR. SUNIL ALIAS SHEKHAR APPASAHEB VERSUS RAJENDRA APPASAHEB SHINDE ... Advocate for Petitioners : Mr. Shinde Abasaheb D. Mr. Patil Bankar Dilip N. advocate For R/sole ... CORAM : SHRIHARI P. DAVARE, J. Dated: November 24, 2011 ... PER COURT :- 1. Heard learned respective counsel for the parties. 2. These are the three applications preferred by the applicant- original complainant, seeking leave to file appeal, challenging the judgments and orders of acquittal dated 2.5.2011, rendered by 6th Judicial Magistrate First Class, Ahmednagar, thereby acquitting the respondent/original accused for the offence p/u/s 138 of Negotiable Instruments Act (herein after referred to as N.I.Act for short). aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 3. I have perused the impugned judgments and orders dated 2.5.2011 and Record and proceedings with the assistance of learned counsel for the parties. [The parties herein after referred to as per their original status i.e. complainant and accused]. 4. Factual matrix of the matter is as follows :- The applicant / complainant Sunil @ Shekhar Appasaheb Shinde claims to be the owner of the Registered Firm namely ‘Lokseva Mudranalaya’ & ‘Lokseva Traders’ and Smt. Suman Appasaheb Shinde is his mother. It is claimed that applicants firm are engaged in the business of printing and also dealing with products of printing business. The respondent accused namely Rajendra Appasaheb Shinde is the brother of the complainant and he is carrying on the business in the firm name and style as ‘Lokseva Enterprises’ adjacent to the firm of complainant. It is alleged that on 28.4.2009 at about 09.00 a.m. the complainant noticed that drawer of the office table was in opened condition and accused affixed iron sheet at the curve in between office and record room and an amount of Rs.10,000/- was stolen from the drawer of the complainant by the accused as well as accused grabbed the articles, goods and materials belonging to the complainant amounting to Rs.25.00 to Rs.30.00 lacs. Hence, the complainant lodged the complainant against the accused on 28.4.2009 under Crime No.138/2009 in respect of theft committed by the accused. 5. It is also alleged that on 7.5.2009, the complainant again noticed that accused has again stolen certain material worth Rs.50,000/- and therefore, the complainant lodged complaint against the accused under Crime No.157/2009 on 9.5.2009. After registration of the said crime, the complainant further found that, certain material was stolen by the accused aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD and said fact was told to the mother of the applicant. It is further alleged that at that time, mother of the complainant decided to lodge criminal complaint against the accused however, respondent approached the complainant and his mother and requested that by way of earlier two complaints his image was tarnished and therefore, requested that complainant and his mother not to lodge the complaint against accused. Accused also assured that whatever loss the complainant and his mother sustained, he would compensate the same and accused assured to give Rs.25 lacs to complainant within eight days. Accordingly, after eight days, when complainant demanded money to accused, at that time accused issued cheque bearing No.527090 dated 6.6.2009 for Rs.10.00 lacs in Criminal Application No.2398/2011, cheque bearing No.527088 dated 1.6.2009 for Rs.10.00 lacs in Criminal Application No.2399/2011, cheque bearing No.527089 dated 3.6.2009 for Rs.5.00 lacs in Criminal Application No.2400/2011. 6. Accordingly, the complainant presented the said cheques for encashment purpose. However, said cheque was dishonoured and returned unpaid with the endorsement ‘Referred to drawer’ alongwith cheque return memo therewith. Hence, the complainant issued statutory notice dated 15.6.2009 to the accused and called upon the accused to pay the said cheque amount/s. Said notice was served upon the accused on 16.6.2009. Accused gave reply to the said notice by reply dated 27.6.2009 and denied the allegations. However, accused failed to pay the cheque amount within 15 days from the date of receipt of the said notice. Hence, the complainant filed present complaint against accused u/s 138 of N.I. Act before learned Judicial Magistrate First Class. Accordingly, verification of the complainant was recorded and process came to be issued against accused. Accused appeared in the said complaint and his plea was recorded and accused pleaded not guilty and claimed to be tried. aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 7. To substantiate the case of the complainant, he examined himself as well as examined his mother namely Suman whereas accused neither examined himself nor examined any defence but put forth his defence through cross examination of the complainant’s witnesses and produced the documents on record i.e. account extract of Lokseva Enterprises in Pravara Sahakari Bank Limited, Ahmednagar of account No.477 in all criminal applications and put forth his defence through cross examination of the complainant and his witness and also through statement of the accused recorded under section 313 of Code of Criminal Procedure. 8. After considering the oral and documentary evidence adduced/produced by the complainant and accused and also after considering the rival submissions advanced by the parties, learned trial court acquitted the accused for the offence p/u/s 138 of N.I.Act by judgment and order dated 2.5.2011. Hence, being aggrieved by said judgment and order of acquittal, complainant has preferred present application/s, seeking leave to file appeal/s. 9. As mentioned herein above, the complainant examined himself and his mother Suman and complainant adduced oral evidence and produced documentary evidence and while producing the said documentary evidence, he produced cheque in question i.e. cheque for Rs.10.00 lacs in Criminal Application no.2398/2011 and 2399/2011 and for Rs.5.00 lacs in Cri.Application No.2400/2011, Bank Return memo, copy of the notice, postal acknowledgment of the said notice, FIR in Crime No.138/2009, spot panchnama in the said crime, seizure panchnama in the said Crime as well as FIR in Crime No.157/2009, spot panchnama, seizure panchnama in the said aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD Crime, shop Act License of complainant establishment, authorization letter. On the said background, accused produced reply dated 27.6.2009 sent to the notice of the complainant as well as account extract of Lokseva Enterprises for the period 1.1.1999 to 19.7.2010 & 17.6.2006 to 19.7.2010 as mentioned herein above, respectively. 10. Learned Counsel for the complainant relied upon the following judicial pronouncements in the case of 1] Rangappa Vs. Mohan reported in 2010 AIR SCW 2946, 2] Goa Plast (P) Ltd., Vs Chico Ursula D’Souza reported in [2004 (2) Mh.L.J.] 348 and 3]. I.C.D.S.Ltd., Vs. Beena Shabeer and another reported at 2002 (4) Mh.L.J. page 1 and also relied upon the very Section 138 of N.I. Act and canvassed that cheque in question was issued by the accused to the complainant towards discharge of other liability which has been signed by the accused himself and therefore, accused is liable therefor. 11. Learned counsel for the accused/respondent countered the said argument and submitted the cheques signed by the accused were in possession of the deceased father Appasaheb Shinde and after his death, said record came into custody of the complainant and complainant misused the said cheque/s and filed present complaints against accused. It is also canvassed by learned counsel for respondent that there existed no legally enforceable debt/liability and cheques in question were not issued towards the legally enforceable debt/liability by the accused to the complainant and hence, it is submitted that learned trial court has rightly arrived at the conclusion in that respect and acquitted the accused. Accordingly, learned counsel for the respondent supported the impugned judgment and urged that no interference is warranted in the Appellate jurisdiction. aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 12. After considering the rival submissions of learned counsel for the parties, at the outset, considering the oral and documentary evidence adduced/produced by the complainant, initial presumption is raised in favour of the complainant under section 118 (a) and 139 of N.I.Act that cheque in question has been issued by the accused to the complainant towards discharge of debt/liability partly or in whole. However, the said presumption is rebutable as per the reverse onus clause in Section 139 of N.I.Act and accused has to rebute the said presumption on preponderance of probability and he is required to establish that said defence raised by him is a probable defence. 13. Keeping in mind the defence put forth by the accused which has been mentioned herein above and coming to the cross examination of the complainant, it is pertinent to note that, the complainant has admitted that after death of his father, the entire affair came into his custody and custody of the mother. Moreover, he also admitted that the cheque/s in question was neither typed by the accused in his presence nor accused signed thereon in his presence and complainant was unable to state Whether accused signed on the cheque in his presence. Moreover, he also admitted that no document was executed at the time of issuance of said cheque in question and except the complainant no other witness was present at that time. Hence, except the complainant’s bare words, there is nothing on record that cheque in question was handed over by the accused to the complainant. Moreover, complaint’s witness Suman also admitted that accused never gave cheque or money into her custody. She also admitted in the cross examination that after death of Appasaheb, entire documents and record came into possession of the complainant and said record also comprised the bank documents. 14. Hence, it is apparent from the very admissions of complainant aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD and his witness in the cross examinations that defence put forth by the accused is probable. Hence, learned trial court has rightly held that the accused has established said defence on preponderance of probability which also appears to be probable and accused has rebutted the presumption under section 139 of N.I.Act. 15. Hence, in that scenario, burden shifts upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against accused and cheque in question was issued to the complainant by the accused towards discharge of legally enforceable debt partly or in whole. However, in the said context, the complainant admitted in the cross examination that he had no money transaction with the accused. Moreover, complainant has not produced any cogent evidence to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused and hence, learned trial court has rightly arrived at the conclusion that cheque in question was not issued by the accused to the complainant towards legally enforceable debt/liability partly or in whole. Moreover, sight cannot be lost of the very section 43 of the N.I.Act. as well as Section 28 of the Indian Contract Act and observations made by the learned trial court in that respect also cannot be faulted with. In view of the said position, judicial pronouncement cited by learned Advocate for the applicant will not be of any aid and assistance to the applicant. 16. In the circumstances, after scrutinizing and analyzing 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 warranted in the Appellate Jurisdiction and therefore, present application/s deserve to be rejected. 17. In the result, all the three applications which are sans merits stand aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD dismissed. Leave to file appeal is refused. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) ... aaa