1 criap-1836.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1836 OF 2010 Navnath s/o Babu Thorat applicant-orig.complainant versus The State of Maharashtra and another. Respondents/Resp.No.2 original accused. ----- Shri M.B. Kolpe, Advocate, for the applicant. Smt.Y.M.Kshirsagar, A.P.P. for respondent No.1. Shri P.S. Chavan, Advocate for respondent No.2. ----- Coram : Shrihari P. Davare, J. Date : 24th March, 2011. P. C. 01. This is an application preferred by the applicant-original complainant, seeking leave to file appeal, challenging the judgment and order dated 11.2.2010 rendered by the learned Judicial Magistrate, First Class, 3rd Court, Osmanabad, in S.C.C. No.981 of 2003, thereby acquitting the accused-respondent No.2 herein of the offence punishable under Section 138 of the Negotiable Instruments Act. 02. The facts, in brief, which gave rise to present application seeking leave to file appeal, are as follows. 2 criap-1836.10 03. The complainant claims to be a tractor owner and entered into an agreement with Bhogavati Cooperative Sugar Factory Limited, Irle Bairag, Tulsidas Nagar, Taluka Barshi, for carrying sugarcane. The accused-respondent No.2 is the contractor, who agreed with complainant to provide labours for cutting sugarcane. Accordingly, accused took some advance amount from the complainant. However, the accused failed to do the work as per the terms of the agreement, and hence, the complainant and accused calculated the amounts of the transaction and ultimatley, an amount of Rs.1,25,000/= was found to be due from the accused. Accordingly, accused agreed to repay the said due amount and on demand by the complainant, he issued cheque for Rs.1,25,000/= bearing No.501992 dated 5.3.2003, drawn on Marathwada Gramin Bank Branch, Osmanabad. However, when the complainant presented the said cheque for encashment in Osmanabad District Central Cooperative Bank, branch Tambari Vibhag, Osmanabad, it was returned unpaid with bank memo bearing endorsement "funds insufficient". Hence, the complainant issued demand notice on 8.4.2003 to the accused, calling upon him to repay the cheque amount, however, the said envelope was received back by the complainant on 17.4.2003, 3 criap-1836.10 with postal endorsement "Addressee refused to take, hence returned to Addressor". Accordingly, the complainant filed complaint under Section 138 of the Negotiable Instruments Act, after statutory period is over. The accused appeared in the matter and the substance of the offence was explained to him, to which he pleaded not guilty and claimed to be tried. 04. To substantiate his case, the complainant examined, in all, four witnesses, namely; PW-1 Navnath Babu Thorat complainant PW-2 Rajendra Navnath Thorat son of complainant PW-3 Subhash Pandharinath Gambhire Accountant in the Bhogawati Sugar Factory. PW-4 Ulhas Shrinivas Athale Handwriting expert 05. The accused examined in all three witnesses in defence, i.e. accused himself and two attesting witnesses to the document (Exh.73), namely, Balu Devidas Chavan and Shankar Ganpat Pawar. Moreover, the complainant produced the documentary evidence. 4 criap-1836.10 06. Considering the oral and documentary evidence adduced and produced by the complainant, and more particularly the cheque below Exh.24, bank memo below Exh.25, notice below Exh.26, postal receipt of R.P.A.D. at Exh.27, acknowledgment receipt of stamp of Rs.50/= at Exh. 36, agreement deed with Bhogwati Sahakari Sakhar Karkhana at Exhs. 46 and 47, account of advance of bill of contractor of the year 2000-2001 below Exh.49, Khata extract of accused for the year 2000-2001 below Exh.51, agreement deed by complainant with sugar factory in the year 2001-2002 below Exhibits 52 and 53, account of advance bill of contractor in the year 2001-2002 below Exh. 55 and 56, khata extract of accused for the year 2001-2002 at Exhibit 57, consent letter below Exhs. 58 and 59, apparently; initial presumption under Sections 118 and 139 of the Negotiable Instruments Act, is in favour of the complainant that the accused had issued the cheque in question to him towards discharge of liability, wholly, or in part. 07. That takes me to the defence of the accused, which is that he repaid the whole due amount to the complainant and the complainant has also given receipt (Exhibit 73) to that effect and the 5 criap-1836.10 contents of Exh.73 are that the complainant agreed that he has received whole the amount, but he lost the cheque bearing No.501992 and agreed to return back the same whenever he would found it. However, without returning the said cheque, he filed present case, falsely. In substance, defence of the accused is that he repaid the amount under the cheque in question and he has been discharged from the liability. 08. The receipt (Exh.73) is hotly contested. The report of the handwriting expert Mr. Athale, was called for in respect of the alleged signature of the complainant, thereon. The said report reflected that the disputed signature on document Exh.73 and the admitted signature of the complainant differ from each other. However, the accused examined the attesting witnesses to the said receipt, namely, Balu Chavan and Shankar Pawar. However, the complainant alleged that the said attesting witnesses are the relatives of the accused and hence, deposed in favour of the accused to oblige him in respect of the false receipt (Exh.73). 6 criap-1836.10 09. However, the trial court observed that the expert's evidence is merely a corroborative piece of evidence, and not conclusive proof and having comprehensive view of the matter, learned trial court came to the conclusion that the accused has rebutted the presumption under Sections 118 and 139 of the Negotiable Instruments Act, on preponderance of probability, and considering the evidence on record, more particularly receipts at Exhs. 26, 27 and 36, and I do not find any flaw therein. Accordingly, burden shifts upon the complainant to prove and establish beyond reasonable doubt that the cheque in question was issued by the accused towards repayment of legally enforceable/recoverable debt/liability. 10. In the said context, it is necessary to note the contents of the complaint which are apparently vague and ambiguous and the complainant has not given any particulars of the alleged transactions, therein. Pertinently, the complainant has nowhere denied transaction (Exh.73) and even no suggestion has been given to the defence witnesses No. 1 to 3, denying the said transaction. Moreover, the learned trial court has observed that the complainant has produced at 7 criap-1836.10 Exh.36, the document bearing head "----------------", from which it can be seen that an amount of Rs.2,06,148/= was due from the accused, but the complainant has not stated a word about the amount mentioned in Exh. 36 and the document below Exh.36 differs from the theory of the complainant. Considering said observations of the Trial Court, the question arises if the amount of Rs.2,06,148/= was due from the accused, then why the complainant has not stated about the said amount mentioned in Exh. 36 and the said question remains unanswered, and the observations made by the trial court in that respect, are material and there appears to be no flaw therein. 11. Moreover, khata receipts produced by complainant at Exhs. 51 and 57 show that accused had done the work of Rs.98,853.23 ps. in the year 2000-2001 and he had done further work of Rs.95,660.16 ps. in the year 2001-2002, whereas accused produced certified copy below Exh. 63 which shows that he had done the work of Rs.1,02,152/- in the year 2000-2001 and work of Rs.96,860.00 ps. in the year 2001-2002, and aforesaid calculations and amounts mentioned by complainant in his complaint differ from each other and there is no link of chain, therein. 8 criap-1836.10 12. Hence, it is apparently clear that the complainant has failed to prove and establish beyond reasonable doubt that the accused issued the cheque in question towards discharge of legally enforceable debt, and therefore, learned trial court rightly acquitted the accused, of the offence punishable under Section 138 of the Negotiable Instruments Act and no interference therein is warranted, in the appellate jurisdiction. 13. Moreover, the view adopted by the trial court, after assessing and analyzing the evidence on record while acquitting the accused, appears to be possible view and does not appear to be perverse, as well as the reasoning adopted therefor, cannot be faulted with, and hence, application deserves to be rejected. 14. In the result, application stands rejected. Leave to file appeal is refused. Record and proceedings be sent back to the concerned court. pnd/criap-1836.10 (Shrihari P. Davare, J.)