1 crapln2419.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2419 OF 2010. Prakash s/o Babanrao Mahale, age 48 yrs. occu. business, r/o Jaibharat Chowk, near Petiti High School, Sangamner, tq.Sangamner, District Ahmednagar. ...APPLICANT. (Ori. complainant) VERSUS Bhausaheb s/o Vishwasrao Deshmukh, age 35 yrs. occu. agri./service, r/o Pimparane, Tq. Sangamner, Dist. Ahmednagar. ...RESPONDENT. (Ori. accused) ... Shri S.J. Salgare, Advocate holding for Smt. S.S. Jadhav, Advocate for Applicant. Shri S.T. Shelke, Advocate for Respondent. ... CORAM: S.S. SHINDE,J. RESERVED ON: 2nd February, 2011. PRONOUNCED ON : 18th February, 2011. PER COURT: 1. It is the case of the applicant - original complainant that the respondent - accused was having friendly relations with the 2 crapln2419.10 complainant. He was in financial difficulty. He made demand of hand loan of Rs.80,000/- towards the complainant. Considering friendly relations, the complainant agreed to make payment and on 28th March, 2008, he gave cash of Rs.80,000/- to the accused. It is the case of the complainant that towards reimbursement of this amount, the accused gave Cheque No.9055 drawn on Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner, dated 15th June, 2008 amounting to Rs.80,000/- in favour of the complainant and assured its encashment. 2. The cheque was deposited by the complainant with his banker Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner on 20th September, 2008. The same was not honoured and returned to the complainant with an endorsement "funds insufficient'. The said fact was communicated to the complainant by his banker on 20th September, 2008. On 16th 3 crapln2419.10 October, 2008, the complainant issued notice to the accused as per Section 138(b) of the Negotiable Instruments Act (for short, referred as `the said Act') and demanded money involved in the cheque. The accused refused to accept the notice. The Notice returned to the complainant on 18th October, 2008 with an endorsement "Refused to accept". The accused got knowledge of the notice but, he failed to make payment within fifteen days and committed offence punishable u/s 138 of the said Act. Therefore, the complainant filed the complaint. 3. After recording verified statement of the complainant as per Section 200 of Cr.P.C., process came to be issued. The respondent appeared before the Court. After recording evidence and after hearing the parties, the Court of J.M.F.C. (Court No.3), Sangamner dismissed the complaint. The trial Court held that the complainant failed to prove that 4 crapln2419.10 cheque (Exh.19) was presented for encashment with his banker and it was dishonoured due to "insufficient funds". The Court further held that the complainant failed to prove that the cheque dated 15th June, 2008 at Exh.19 was issued in favour of the complainant towards discharge of debt or any other liability. Therefore, this application is filed by the original complainant seeking leave to appeal from the judgment and order dated 25th March, 2010 in STC No.752/2008 passed by the J.M.F.C., Sangamner. 4. The learned Counsel for the applicant submitted that the very fact that the respondent refused to accept the notice issued by the complainant would sustain mens rea of the respondent. It is further submitted that the trial Court failed to draw presumption u/s 139 of the said Act. It was incumbent upon the accused to explain as to why he had issued said cheque. It is further submitted that 5 crapln2419.10 there was no endorsement of the Bank on the Bank slips which had shown insufficiency of funds and due to that, the trial Court held against the complainant. However, the trial Court should have called the Bank Official as court witness. There cannot be acquittal on procedural aspect. It is further submitted that since there were friendly relations between the parties, it was not expected by the complainant to inquire about the reason for which money was demanded. It is further submitted that at the time of filing the complaint, the applicant could not submit balance sheet since it was not ready at that time. Therefore, the same was not presented. However, that would not cause any prejudice to the accused. It is further submitted that under Section 138 of the said Act, onus of rebuttal of presumption is upon the accused and not upon the complainant. There is no question of extending benefit of doubt to the accused unless the presumption is rebutted by 6 crapln2419.10 cogent and convincing evidence. It is further submitted that the whole approach of the trial Court is erroneous. The trial Court should have called upon the accused to pay the cheque amount. The Counsel further invited my attention to Exh.21 and submitted that the said document has been admitted in evidence, which clearly shows that the cheque was returned for the reason of "insufficient funds". Therefore, the learned Counsel for the applicant would submit that this Court may allow the application seeking leave to appeal. 5. The learned Counsel for the original accused - respondent herein submitted that the respondent has rebutted the presumption and raised possible defence. The said defence has been accepted by the trial Court and the respondent came to be acquitted. He further submitted that there is no any document or any agreement placed on record by the complainant to suggest that the amount as alleged had been 7 crapln2419.10 given by the complainant to the respondent. Except bare words of the complainant that there was demand by the respondent of Rs. 80,000/- since he was in financial difficulty, nothing was placed on record before the trial Court by the complainant to show that there is legally recoverable debt or liability of the respondent and in that respect the cheque was issued in favour of the complainant. The Counsel further submitted that one Mr. Deshmukh was examined as defence witness. He has fully supported the defence taken by the respondent. It is further submitted that the complainant is director of Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner and the respondent / accused is an employee of the said Bank. By using undue influence upon the respondent, the complainant had obtained cheque from the respondent. It is further defence of the respondent / accused that the amount involved in the cheque is not legally recoverable from him. It is further case of the respondent that one Madan Ramrao Deshmukh has stated before the 8 crapln2419.10 Court as defence witness that there was transaction of sale and purchase of gold between himself and Mr. Prakash Mahale i.e. the complainant. He has stated in his evidence that there is no any financial transaction between the complainant and the respondent / accused. However, since the complainant is director of the said Bank, by misusing his authority, he compelled the respondent, who is employee of the Bank, to issue bank cheque and also obtained signature on letter pad. It is further stated that prior to this also the complainant had cheated other persons by adopting same method. This witness has further stated that the complainant called him and also the respondent / accused and in order to ensure that this witness should pay the amount of purchase of gold, the document was prepared on the letter pad of Mahale Jewelers on 28th March, 2008 showing the amount due towards this witness and the complainant has signed the said letter pad. The learned Counsel for the respondent would submit that there was transaction of sale and purchase of gold between the complainant and Madan Ramrao Deshmukh and 9 crapln2419.10 since the respondent is Bank employee, he had given the said cheque as a witness to the said transaction. It is further submitted that the entire payment of the complainant has been paid by said Madan Ramrao Deshmukh. It has been proved before the Court that the entire payment has been given by DW-1. Therefore, according to the Counsel for the respondent, no case was made out against the respondent and the trial Court has rightly acquitted him. He, therefore, submitted that the application seeking leave to appeal may be rejected. 8. I have given due consideration to the rival submissions of the parties. On perusal of the record, it appears that the complainant examined himself as PW-1 at Exh.17 and relied on the cheque dated 15th June, 2008 at Exh.19, cheque deposit slip dated 20.9.2008 (Exh.20), Bank memo dated 20.9.2008 (Exh.21), envelope (Exh.22), postal receipt (Exh.23), notice dated 15.10.2008 (Exh.24), photocopy of the document dated 20.3.2008 (Exh.25) and balance 10 crapln2419.10 sheet (Exh.26). Upon perusal of the evidence on record and more particularly, counterfoil which is at Exh.20/C dated 20th September, 2008, it clearly shows that there is only signature of manager. In fact, if the cheque was presented, the counterfoil should show the details about the cheque number. However, there is no mention of cheque number on the said counterfoil. Original cheque is on record at Exh.19. Perusal of the figure 80,000/- shows that last digits i.e. "00" are erased to some extent. The trial Court has referred to the evidence of the complainant and observed that to establish presentation of the cheque, the complainant has produced two documents - cheque presentation slip (Exh.20) and memo of dishonor of cheque issued by Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner (Exh.21). During his cross- examination, he has admitted that his shop is besides Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner and he was director of 11 crapln2419.10 the said Bank for many years. He further admitted that the accused is an employee of the said Bank. The trial Court, in paragraph 7 of the judgment, observed that on perusal of documents at Exh.20 and 21, it is evident that both these documents do not denote official mark of Shri B.J. Khatal Janata Sahakari Bank Ltd., Branch Sangamner. The presumption u/s 146 of the said Act is not available to these documents. Mere exhibition of these documents cannot be read as proof about the genuineness of the documents. The complainant has not examined any employee of the said Bank to prove the said documents though name of the Bank employee was mentioned in the list of witnesses submitted by the complainant. The fact of presentation and dishonour of cheque due to insufficient funds is not proved by the complainant beyond reasonable doubt. So far as issuance of notice by the complainant to the respondent is concerned, the trial Court has held that proper notice was given by the 12 crapln2419.10 complainant to respondent. The trial Court has considered the effect of the provisions of Sections 138 and 139 of the said Act. The evidence brought on record has been minutely scrutinized by the trial Court in paragraphs 11 and 12 of the impugned judgment. The trial Court has reached to the conclusion that presumption under Sections 118 an 139 of the said Act is very well rebutted by the respondent / original accused. The complainant could not satisfactorily prove that the accused issued cheque dated 15th June, 2008 in his favour towards discharge of legal liability or debt. The complainant failed to prove that the amount mentioned in the cheque is legally recoverable from the accused. 9. On independent scrutiny of the documents and upon hearing the learned Counsel for the complainant - applicant, it appears that nothing has been brought to the notice of this 13 crapln2419.10 Court to take a different view than the view taken by the trial Court. It is an admitted position that there is no any other document to show transaction between the complainant and respondent. The DW-1 in his evidence has categorically stated that there was transaction between the complainant and himself. He has further stated that there was no transaction between the complainant and respondent and the document which was produced by the complainant raises doubt about the authenticity of the said document because it is written on the said document as "Madan Ramrao Deshmukh through Bhausaheb Vishwasrao Deshmukh" (accused). 10. Taking overall view of the matter and upon independent scrutiny of the record and proceedings made available, in my opinion, a possible view has been taken by the trial Court. The complainant has utterly failed to prove either presentation of the cheque and 14 crapln2419.10 its dishonour or that there was legally recoverable debt from the respondent. 11. Therefore, the application seeking leave to appeal is devoid of any merits and it stands rejected. [ S.S. SHINDE, J ] ..... Kadam.