1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.455/2000 Sow. Snehlata Dayanand Salve, age 50 yrs, Occ. Household, r/o Mission Compound, Rahuri Tq. Rahuri, Dist. Ahmednagar. Appellant V E R S U S 1- Prabhakar Nathuji Pandit (Master.) age 50 yrs, Occ. Nil, r/o Deolali Pravara, Tq. Rahuri, Dist Ahmednagar. 2- The State of Maharashtra, (Copy to be served on Public Prosecutor High Court Bombay, Bench at Aurangabad.) Respondents. ----------------------------------------------------------------------------- Mr. Vikram Kadam h/f Mr. R.N.Dhorde, Advocate for appellant. Mr. V.A.Husale Advocate for respondent no.1- absent Mr. S.N.Kendre Advocate for R-2. ----------------------------------------------------------------------------- .... CORAM : SHRIHARI P. DAVARE,J. DATE : 16th November, 2011. ORAL JUDGMENT : 1. Heard learned respective counsel for the parties. 2 2. This is an appeal preferred by the appellant/original complainant, challenging the judgment and order of acquittal dated 20.9.1997, rendered by learned Judicial Magistrate First Class, Rahuri, thereby acquitting the respondent No.1 i.e. 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). 3. The factual conspects and shorn of the details are as follows :- It is the case of the complainant that she and the accused were known to each other and accused purchased the agricultural land from the complainant by registered sale deed dated 21.1.1994, gat No.1915 of Mauje Deolali Tq. Rahuri admeasuring 86 Aars for the consideration of Rs.91,000/-. It is alleged that part payment of Rs.60,000/- was made by the accused to the complainant towards said sale deed, balance amount of Rs. 31,000/- was remained to be paid to the complainant. Accordingly, accused issued cheque No.837687 of Rs.9,000/- on 5.1.1995 to the complainant towards the balance of the said 3 remained part payment. The complainant presented said cheque through Bank of Maharashtra Rahuri Branch for acknowledgment purpose on 11.2.1995 however, said cheque was dishonoured and returned unpaid on 23.2.1995 accompanied by cheque return memo bearing endorsement “insufficient funds”. Hence, the complainant issued statutory legal notice to the accused on 28.2.1995 demanding amount of the cheque from the accused. Said notice was served upon the accused on 1.3.1995. Accused replied to the said notice on 9.3.1995 but did not deny the issuance of the said cheque by him therein. However, the accused failed to make the payment of the amount of the said cheque to the complainant within the period of 15 days from the date of receipt of the notice. Hence, the complainant filed the complaint against the accused before learned Judicial Magistrate First Class, Rahuri under section 138 of Negotiable Instruments Act on 13.4.1995 under STCC No.214/1995. The verification of the complainant was recorded on 18.4.1995 and process came to be issued against the accused under section 138 of Negotiable Instruments Act on the same day. Accused appeared therein on 4 20.8.1997 and his plea was recorded and he pleaded not guilty. 4. To substantiate the case of the complainant, the complainant namely Snehalata Dayanand Salve examined herself as PW 1 and also examined two other witnesses namely Sunil Jadhav as PW 2 Junior Officer belonging to A.D.C.C. Bank, and PW 3 Goraksha Gangadhar Dhanwade, clerk of Bank of Maharashtra branch Rahuri On the said background, accused neither examined himself nor examined any defence witness but put forth his defence through cross examination of the complainant and her witnesses and also through his statement recorded under section 313 of Code of Criminal Procedure. 5. Considering the oral and documentary evidence adduced/produced on record, and also considering the rival submissions advanced by the learned counsel for the parties, learned Judicial Magistrate First Class, Rahuri arrived at the conclusion that cheque in question was not issued by the accused to the complainant towards legally enforceable debt/liability and therefore, acquitted the accused for the offence p/u/s 138 of Negotiable Instruments Act by way of judgment and order dated 5 20.9.1997. Being aggrieved and dissatisfied by the said judgment and order of acquittal, complainant has preferred present appeal and prayed for quashing thereof. 7. The complainant and her above referred witnesses through their oral testimonies produced documentary evidence i.e. cheque in question dated 5.1.1995 Exh.32, cheque return memo of ADCC Bank dated 17.2.1995 Exh.39, cheque return memo of Maharashtra Bank dated 23.2.1995 Exh.43, copy of legal notice dated 28.2.1995 Exh.30, registered postal acknowledgment bearing signature of the accused dated 1.3.1995 Exh.31, copy of the sale deed dated 21.1.1994 Exh.33 executed in favour of the accused by the complainant and others, and accordingly, presumption was raised in favour of the complainant that cheque in question was issued by the accused to the complainant under section 118 (a) section 139 of Negotiable Instruments Act. However, said presumption is rebuttable and the accused is required to rebute the said presumption on preponderance of probability. It is not necessary that accused should examine himself before the court or examine any witness to substantiate his defence, but he can put 6 forth said defence on preponderance of probability and shall be its probability through the cross examination of the complainant and her witnesses as well as through his statement recorded under section 313 of Code of Criminal Procedure. In the said context, accused has categorically stated in his statement recorded u/s 313 of Cr.P.C. that the complainant Snehalata and her brothers and sisters were possessing land at Deolali Pravara. They wanted to sell out their land and approached him. He agreed to purchase that land for consideration of Rs.91,000/-. He paid Rs.31,000/- to the complainant and others at their house. He also collected Rs. 60,000/- and deposited in the Bank. Then complainant and her husband came to his house by jeep. He wrote a cheque and presented in the Bank. He had withdrawn Rs.60,000/- from that Bank. At that time, the complainant misplaced and took out one cheque from his cheque book. Then accused did not understand regarding misplaced cheque. Thereafter, complainant issued him a notice. He has nothing to say about the case and evidence. it is also contention of the accused that the counter foil of the cheque dated 5.1.1995 is also not in the hand writing of the accused. 7 8. Considering the defence raised by the accused and contention of the accused in that respect, it appears that the accused has established said defence on preponderance of probability which also appears to be probable and therefore, the burden shifts upon the complainant and hence, it is incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability of Rs. 9,000/- against the accused and accused issued cheque in question of Rs.9,000/- to the complainant towards legally enforceable debt/liability partly or in whole. 9. However, in the said context, the complainant categorically admitted in her cross examination that at the time of sale deed, accused had paid Rs.60,000/-. Moreover, the complainant also admitted that hand writing on the counter foil of the cheque dated 5.1.1995 is hers and it does not bear the signature of the accused. She also admitted that there is no explanation in her notice and complaint regarding amount of Rs. 9,000/- which is to be taken from the accused. She further stated that cheque in question Exh.32 was not post dated cheque. 8 Pertinently, copy of sale deed Exh.33 discloses that the consideration amount of the said sale deed is Rs.91,000/- and it is categorically stated in the said sale deed that out of the said consideration amount of Rs.91,000/-, Rs.31,000/- was paid by the accused to the complainant and eight days prior to the said sale deed and balance amount of Rs.60,000/- was paid by the accused to the complainant and others at the time of execution of the said saledeed in presence of Sub Registrar, Rahuri and accordingly, the complainant and others received the entire amount of consideration of Rs.91,000/- and there was no grievance in that respect and said very recital in the said saledeed clinches the issue in controversy and leads to the position that, no liability/debt existed against the accused towards the said saledeed, not even liability of Rs.9,000/- was due from the accused towards the said sale deed to the complainant and others which further leads to the position that cheque in question was not issued by the accused to the complainant towards legally enforceable debt/liability partly or in whole and hence, observations made by the learned trial court i n that respect and conclusion drawn by the learned trial 9 court accordingly, is legal and proper. 10. Moreover, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court while acquitting the accused for the offence p/u/s 138 of Negotiable Instruments Act is a possible view and same does not appear to be perverse. So also, the reasoning adopted by the learned trial court while acquitting the accused for the offence p/u/s 138 of N.I.Act in the impugned judgment and also cannot be faulted with and accordingly, there is no glaring defect and hence, no interference therein is called for in the Appellate Jurisdiction. Hence, present appeal deserves to be rejected. 11. In the result, present appeal which is sans merits stands dismissed. R & P be sent back to the concerned court. (SHRIHARI P. DAVARE) JUDGE ... aaa/16.11.2011/455.00 10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.455/2000 DATE OF DECISION : 16-11-2011 FOR APPROVAL AND SIGNATURE : THE HON’BLE SHRI JUSTICE SHRIHARI P. DAVARE. 1. Whether Reporters of Local Papers may be permitted to see the judgment ? ...Yes.. 2. To be referred to the Reporter or not ? ..Yes/No.. 3. Whether His Lordship wishes to see the fair copy of the judgment ? ..No.. 4. Whether this case involves a substantial question of law as to interpretation of the Constitution of India, 1950 or any order made thereunder ? ..No.. 5. Whether it is to be circulated to the Civil Judges ? ..No.. 6. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur, Bombay and Goa offices ? ..No.. ( Mrs. Anuja A. Ankush ) P.A.to the Hon’ble Judge.