- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.4186 OF 2007 APPLICATION NO.4186 OF 2007 APPLICATION NO.4186 OF 2007 Tukaram Mahadeo Kambale ...Applicant vs. Ajit Devgonda Patil ...Respondent Mr.Sandesh D. Patil for the applicant Mr.Umesh Mankapure for respondent No.1. Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 16,2009 : FEBRUARY 16,2009 : FEBRUARY 16,2009 P.C.: P.C.: P.C.: 1. Heard the learned Counsel for the parties. This is an application for grant of special leave to prefer an Appeal under section 4 of the section 378 of the Code of Criminal Procedure,1973. The applicant filed a complaint under section 138 of the Negotiable Instruments Act,1881. The learned Magistrate has passed an order of acquittal. 2. The case of the complainant is that the 1st respondent-accused was in need of money for agricultural operations. The applicant is an ex-serviceman. His case is that he had received certain amount by way of retirement benefits and considering the friendly relationship, he advanced to the 1st respondent a friendly loan of Rs.1,55,000/-. A cheque dated 11th July 2005 was issued by the 1st respondent to the complainant in discharge of the said liability of loan. The said cheque was dishonoured and therefore a complaint was filed. - 2 - 3. The defence of the 1st respondent is of denial of the loan transaction. His case is that he was a Regional Officer of M/s.Kalpataru Marketing Company. The business of the said company was to collect deposits from the members of the public and to return the said amounts together with interest. It is his case that the said company had appointed agents for collection of the deposits from the members of the public. The applicant was one of such agents. According to his defence, the applicant had collected a sum of Rs.1,25,000/- and more and had invested the said amount with the said company. The said company went in liquidation and therefore, the investors could not receive the invested amounts. The applicant is entitled to recover a sum of Rs.1,55,000/- from the said company which he had not received. The defence is that the applicant insisted ON the 1st respondent paying the said amount to him as the 1st respondent was a Regional Officer of the said company. It is his case that a depositors Association was founded by the depositors of the said company and the 1st respondent was helping the said depositors to recover the said amount. It is stated that the applicant was pressurising one Mr.Anup who was resident of his village for recovery of the amount payable by the said company. Therefore, the 1st respondent had to issue a cheque on 11th July 2004 in favour of the applicant in the sum of - 3 - Rs.1,55,000/-. The applicant deposited the said cheque in the Sangli Bank Ltd. Branch Kavathemahankal. The defence of the 1st respondent is that the said cheque has been misused by the applicant. 4. The learned counsel for the applicant submitted that the learned Judge has proceeded on erroneous footing that the three defence witnesses examined were not cross examined by the applicant. He invited my attention to the cross examination of the said three witnesses made by the Advocate for the applicant. He pointed out that in the cross examination of the applicant an altogether different case was made out by the 1st respondent. He pointed out that a suggestion was given that the applicant had obtained a cheque in question by deceiving the 1st respondent. He pointed out that the said suggestion is totally inconsistent with the case made out by the 1st respondent. He submitted that the fact that the defence witnesses were cross-examined by the applicant and that the said inconsistent stand was taken by the 1st respondent has been completely ignored by the learned Judge. He therefore submitted that the impugned Judgment is perverse. The learned counsel for the 1st respondent supported the impugned Judgment and Order. 5. I have carefully considered the submissions. It is true that there are observations made by the leaned Judge at more - 4 - than one place to the effect that the applicant has not cross examined the defence witnesses and their versions have got unchallenged. However, that is not the only finding recorded by the learned Judge. In paragraph 23 the learned Judge has held thus : "23...The amount of Rs.1,55,000/- is much huge amount. No one prudent man ought to believe that a person paid to another person much huge amount without any receipt thereof. It is worthy to note that the complainant has not deposed at anywhere on which date he had paid to the accused an amount of Rs.1,55,000/- nor there is evidence on which day he had that much huge amount. Because, the accused has challenged this fact by putting suggestion to him that he has not produced evidence to show on that he withdraw such amount from any bank and in spite of this fact, the complainant has not taken effort to produce such evidence. Mere version as to he retired from the military service in January 2000 could not raise the presumption that in the year 2005 he had that much amount." 6. Perusal of the cross examination of the applicant shows that he admitted that on his retirement from Armed Forces, he has received a sum of Rs.7 lacs by way of retirement benefits. - 5 - A suggestion was given in the cross examination that he is unable to tell the court the manner in which the said amount was paid to the 1st respondent. The applicant denied the correctness of the said suggestion. However, the applicant admitted that he had not produced any evidence to show that a sum of Rs.1,55,000/- was withdrawn by him from his bank. He also admitted that he has not taken any writing from the 1st respondent. 7. In paragraph 9 of the cross examination, the applicant admitted that the 1st respondent met him for the first time in February 2000 and also admitted that the 1st respondent suggested him to invest the amount in Kalpataru Marketing Company. He admitted that he has no knowledge about the members of the family of the 1st respondent. He stated that though he knew the brothers of the 1st respondent, he was not aware of their names. The case made out by the applicant is that out of retirement benefits of Rs.7 lacs, he parted with an amount of Rs.1,55,000/-. He has not produced any document to show that in which manner the amount was paid to the 1st respondent. He has admittedly not produced any evidence to show from which bank the said amount was withdrawn. In the context of the aforesaid admission that the applicant was not aware of the members of the family of the 1st respondent, the learned Judge observed that it is not possible to believe that any retired person will part with a sum of Rs.1,55,000/- - 6 - without taking any writing from the 1st respondent. All this was insufficient to rebut presumption under section 139 of the Negotiable Instrument Act,1881. 8. There is no independent evidence adduced by the applicant to show that he had advanced friendly loan of Rs.1,55,000/- to the 1st respondent. The lacuna in the case of the accused will not help the applicant in establishing the fact that he had advanced an amount of Rs.1,55,000/- to the 1st respondent especially after the presumption under section 139 of the said Act of 1881 was rebutted. It is true that the learned Judge has committed a factual error by observing that the version of the defence witnesses was unchallenged. However, in view of the basic infirmities in the case of the applicant, no case is made out for grant of special leave to prefer an Appeal. 9. It is however made clear that the observations made in this Judgement are for limited purposes of considering the prayer for grant of leave and none of the observations shall be construed as any finding of fact on merits. JUDGE JUDGE JUDGE