1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.180/2011 Suresh Baburao Jawade. Applicant V E R S U S Malhari s/o Sadhu Shirsat. Respondent. Shri R.D.Biradar, Advocate for applicant. Shri M.L.Dharashive, Advocate for the respondent. ===== CORAM : SHRIHARI P. DAVARE, J. DATE : 22 nd JUNE, 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 6.9.2010, rendered by Judicial Magistrate First Class, Ausa in STC No.781/2008, thereby acquitting the respondent-original accused, for the offence punishable under section 138 of Negotiable Instruments Act. [The parties herein after are referred to as per their original status i.e. ‘complainant’ and accused’ for short.] 3. I have perused the impugned judgment dated 6.9.2010 and 2 record and proceeding with the assistance of learned counsel for the parties. 4. Briefly stated facts in the case are that : The complainant is running a grocery shop in the name and style “Jawade Kirana” at Nagarsoga, Tq. Ausa and accused is the proprietor of Shirsath Electrical and Engineering Services at Pune, having its branch office at Latur. Accused is working as an agent for Anker Company. Accordingly, accused approached the complainant and convinced him to purchase the product of Anker Company i.e. RCB Machines. After negotiations oral agreement took place between the complainant and accused and complainant agreed to purchase 100 pieces of R.C.B. machines for Rs.1,60,000/- and accused assured the complainant that he would deliver the goods to him. Accordingly by demand draft dated 14.1.2008 drawn in the name of Anker company, the complainant has paid Rs.1,60,000/- through accused. However, it is alleged that accused failed to deliver the goods in time. On repeated inquiry accused informed the complainant that the machines were not available for delivery, and hence agreed to refund the amount. It is also alleged that considering the amount and interest thereon towards refund the accused has issued a cheque No.468532 dated 10.10.2008 drawn on 3 Osmanabad Janata Sahakari Bank branch Ausa for Rs.1,90,000/- towards repayment of the amount. 5. It is further alleged that complainant presented said cheque for encashment purpose, however, said cheque was dishonoured and returned unpaid with the endorsement ‘funds insufficient’ alongwith cheque return memo from bank on 23.10.2008. Hence, complainant issued a demand notice to the accused on 8.11.2008 by RPAD and UPC. Inspite of intimation of R.P.A.D. envelope, accused has not taken the notice. However, the notice sent by U.P.C. was served on the accused on 17.11.2008 and he replied the same by reply dated 6.12.2008 Exh.30. However, inspite of service of said notice, accused failed to make payment of said cheque amount within 15 days. Hence, complainant filed the complaint against accused under section 138 of Negotiable Instruments Act. Plea of the accused was recorded and he pleaded not guilty and claimed to be tried. 6. To substantiate the case of the complainant he filed affidavit of evidence and also produced counter foil of Demand draft Exh.24 and acknowledgment issued by ‘Shirsat Electrical and Engineering Services’ at Exh.25, disputed cheque Exh.26 and cheque return memo Exh.27 and 28, UPC and RPAD receipts Exh.29, reply given by the accused to notice Exh. 4 30. 7. On the said background, although accused did not examine himself he examined one defence witness namely Shesherao Mundhe who was the branch Manager of Osmanabad Janta Sahakari Bank, Ausa and put forth his defence through the cross examination of the complainant and also through his statement recorded under section 313 of Code of Criminal Procedure. The defence of the accused is that, he acted as an mediator between the Anker Company and complainant. The Demand Draft drawn in the namer of Anker Electrical Company was encashed by the company as per evidence of DW-1. The goods sent by the company is with the accused however, inspite of reply to the notice calling upon the complainant to take the goods, complainant failed to take delivery of the said goods. Hence, no liability can be fastened upon the accused. It is also the defence of the accused that he has issued a blank signed cheque to the complainant towards security purpose but the complainant without accepting machinery has filled up the cheque and presented for encashment by making alteration therein and filed false case against accused. 8. Considering the oral and documentary evidence on record, there is no dispute that initial presumption is in favour of the complainant 5 as per section 118 (a) and 139 of Negotiable Instruments Act, that cheque in question has been issued by the accused to the complainant towards discharge of debt/liability partly or in whole. However, said presumption is rebutable and standard of proof requires there for is on preponderance of probability. Hence question arises whether accused has rebutted said presumption on preponderance of probability. In the said context, considering the defence of the accused and also considering the evidence, it is apparent that amount of Demand Draft Rs.1,60,000/- is paid by the bank to the Anker company and accused did not dispute the said amount of demand draft and it is also apparent that accused acted as an agent of Anker Electrical company and accepted demand draft on behalf of Anker company and deposited the same with the Anker company. Moreover, the complainant after receipt of reply to notice Exh. 30 from the accused, has neither replied nor approached the accused nor collected machinery as specifically stated in the said reply and therefore, defence taken by the accused that he has issued blank signed cheque in question to the complainant by way of security towards delivery of goods, appears to be probable. Accordingly, it is apparent that accused has probabilized his defence and rebutted presumption under section 118 (a) and 139 of Negotiable Instruments Act. 6 9. Hence, now burden shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability towards accused and the disputed cheque in question was issued by the accused towards discharge of legally enforceable debt in part or in whole. However, having survey of oral and documentary evidence, it does not appear that the complainant has discharged the said burden beyond reasonable doubt. Hence, learned trial Court has rightly acquitted the accused for the offence punishable under section 138 of Negotiable Instruments Act and no interference therein is called for in the appellate Jurisdiction. 10. 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 reasoning given therefor also cannot be faulted with. Therefore present application bears no substance and deserves to be rejected. 11. In the result present application being sans merits stands dismissed. Leave to file appeal is refused. Record and proceeding be sent back to the concerned Court. ( SHRIHARI P. DAVARE ) JUDGE aaa/180.11 ...