1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Revision No.223 of 2008 (Sakharam Shankar Ingle v. State of Maharashtra and another) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri B.N. Mohta, Advocate for Applicant. CORAM : R.C. Chavan, J. DATE : 26th November, 2008 By this revision, the original accused in Summary Criminal Case No.212 of 2004 before the learned Judicial Magistrate First Class, Patur takes exception to his conviction for offence punishable under Section 138 of the Negotiable Instruments Act and sentence of simple imprisonment for one month along with direction to pay compensation of Rs.4,29,000/- imposed upon the applicant by the learned Magistrate. The applicant had challenged this conviction by preferring appeal before the learned Sessions Judge, Akola. The learned Judge had dismissed the appeal. Being aggrieved, the applicant has preferred this revision. I have heard the learned counsel for the applicant at sufficient length. The learned counsel for the applicant submitted that the Trial Court as well as the First Appellate Court could not 2 have come to the conclusion that the applicant had received a sum of Rs.4,29,000/- from the complainant, since the complainant had not tendered any contemporaneous record of making such an advance. For this purpose, the learned counsel relied on a judgment of the Supreme Court in K. Prakashan v. P.K. Surenderan, reported at 2008 (1) Civil LJ 835. In that case, the complainant had taken advances from others and gave loans without any attempts to recover the amount lent. The complainant had claimed that he had kept a diary of the transaction, but had not produced it. Therefore, the Apex Court held that on the facts of that case, the learned Trial Judge was justified in holding that the burden on the accused is discharged. The learned counsel for the applicant himself had relied on another judgment of the Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, reported at 2008(4) Mh.L.J. 354, where the Court laid down that standard of proof for the prosecution is that it must prove the guilt of an accused beyond all reasonable doubt, whereas for an accused is just creating a probability. It has to be realized that when the Trial Court renders a judgment of acquittal, an Appellate Court or a higher Court is entitled to interfere in that judgment only if it is perverse or improbable. In the instant case, not only that the Trial Court has convicted the applicant, but the Appellate Court has confirmed the conviction on appreciation of evidence. Therefore, these judgments are of no help to the applicant. 3 There can be no doubt that the complainant was required to prove the guilt of the applicant beyond all reasonable doubt. In the instant case, it is not that the applicant does not admit having received various amounts from the complainant. In fact the applicant had stated in his affidavit before the Trial Court that from time to time he had received sums totalling to Rs.2,00,550. Therefore, it is not that the cheque was totally without any consideration. The applicant had sought to tender evidence to show that a sum of Rs.1,35,500/- was paid to the complainant on 13-11-2003. For this purpose, he had tendered the evidence of Vasant Kshirsagar, Police Patil of the Village, whose evidence was rightly not considered by the Sessions Judge. The learned counsel fairly made the copy of Vasant's evidence available for my perusal. While in the affidavit filed by Vasant Kshirsagar, he had stated that the amount received from transaction dated 13-11-2003 was paid by the accused to the complainant in his presence, in cross-examination, he admitted that no part of the transaction took place in his presence and in his presence there was no exchange of any amount. In view of this, the learned Additional Sessions Judge cannot be faulted for not discussing the evidence of this witness. The learned counsel for the applicant submitted that the complainant having stated that he had kept some sort of diary, he should have produced the diary and non-production 4 of that diary should have led to drawing an adverse inference. He further pointed out that he had received two statements in an envelope showing statement under signatures of the complainant to indicate that the debit in respect of the applicant in books of accounts of the complainant was only Rs.1,290/-. Now it is impossible at this stage to look into those documents whose authenticity as well as the manner in which they were received by the complainant is all vague. This debit entry for the period from 1-4-2003 to 31-3-2004 may be in respect of Krushi Seva Kendra. The cheque transaction pertains to advances made by the complainant as a person and not towards the transaction in the Krushi Seva Kendra. The learned counsel for the applicant also placed reliance on the judgment of this Court in Rajendraprasad Gangabishen Porwal v. Santoshkumar Parasmal Saklecha and another, reported in 2008(4) AIR Bom R 322, where this Court held that the conviction of the accused was not proper and that presumption about consideration would not relieve the complainant from proving pre-existing legal liability to pay the amounts shown in the cheque. Applicant's admission of indebtedness and failure to prove repayment would show that complainant's version was rightly believed by the Courts below. In view of this, the findings recorded by the Courts below based on appreciation of evidence tendered before the learned Magistrate do not indicate any error, which requires correction in exercise of revisional jurisdiction. 5 The revision application is rejected. JUDGE pdl