1 crap1129.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1129 OF 2011 Babulal Surajmal Bhandari ...Applicant [Orig.Complainant] VERSUS Hemant Shamsundar Sarda ...Respondent [Orig.Accused] ..... Shri Ram Deshpande, advocate for applicant Shri A.S.Bajaj, advocate for sole respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 13th December, 2011 PER COURT : 1 Heard the respective learned counsel for the parties. 2 This is an application preferred by the applicant seeking leave to file appeal, challenging the judgment and order of acquittal, dated 10.2.2011, thereby acquitting the respondent (original accused) for the offence under Section 138 of the Negotiable Instruments Act. 2 crap1129.11 3 I have perused the impugned judgment and order, dated 10.2.2011 and the R. and P. with the assistance of the learned counsel for the parties. 4 The parties herein after referred to as per their original status, "the complainant" and "the accused". 5 The factual matrix of the case is as follows :- The complainant claims to be a businessman and according to the complainant, there were cordial relations between himself and the accused and the accused was partner of "Sarda Cloth Stores" at the relevant time. It is alleged that on 26.1.2006 the accused demanded amount of Rs. Five Lacs from the complainant for purchase of cloth for proposed marriage season. The complainant expressed his willingness to provide the money as hand loan and asked the accused to return the said amount in June, 2006 for the marriage of his son. It is also alleged that considering the dire need of the accused, the complainant paid an amount of Rs. Two Lacs to the accused on 26.1.2006 in presence of Suresh Motilal Kankariya and Santosh Hastimal Gandhi at Kada village. However, according to the complaint, the complainant demanded the said 3 crap1129.11 amount from the accused on 10.4.2006. Thereupon, the accused issued cheque of Rs.Two Lacs drawn on H.D.F.C. Bank, Ahmednagar. The complainant presented the said cheque for encashment purpose on 15.5.2006 through Dwarkadas Mantri Urban Co-operative Bank, Ahmednagar Branch. However, the said cheque was dishonoured and returned unpaid along with cheque return memo with the endorsement “insufficient funds”. Accordingly, the complainant informed the accused about the dishonour of the said cheque. Thereupon the accused asked the complainant to redeposit the said cheque for clearing. Therefore, the complainant redeposited the said cheque for encashment purpose on 26.6.2006, but again it was dishonoured on 27.6.2006. Hence, the complainant issued statutory legal notice to the accused on 3.7.2006 and demanded the cheque amount and the said notice was sent on the address of Ahmednagar, which was given by the accused. However, the said notice was returned back on 14.7.2006 as ‘unclaimed’. The accused failed to pay the cheque amount within 15 days from the return of the said notice. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. After recording the verification of the complainant, the process came to be issued against the accused under Section 138 of the Negotiable Instruments Act on 28.8.2006. The accused appeared in the said case and his plea was recorded and he pleaded not guilty and 4 crap1129.11 claimed to be tried. 6 To substantiate the case of the complainant, the complainant filed his affidavit of evidence in examination in chief and also examined witness, namely Madhav Tulshiram Tambe for proof of service of notice. While adducing oral evidence, the complainant produced documentary evidence also, such as disputed cheque in question at Exh.49, cheque return memo Exh.45, intimation Exh.46, envelope with the notice at Exh.47 and office copy of the notice at Exh. 48. 7 On the afore said background, the accused neither examined himself nor examined any defence witness, but put forth his defence through the cross-examination of the complainant and his statement recorded under Section 313 of the Code of Criminal Procedure. The defence of the accused is two fold that :- (i) The disputed cheque in question was issued by the accused to the complainant towards the previous transaction between them for security purpose; and (ii) Non-service of statutory notice. 5 crap1129.11 8 Considering the oral and documentary evidence adduced/produced by the complainant, it is apparent that the initial presumption under Section 118(a) and 139 of the Negotiable Instruments Act is in favour of the complainant that the accused issued the disputed cheque in question towards the discharge of debt/liability partly or in whole. However, the said presumption under Section 139 of the Negotiable Instruments Act is reversible presumption i.e. rebuttable presumption and the test required to rebut the said presumption by the accused is of preponderance of probability and not persuasive. 9 In the said context, coming to the defence of the accused, it is settled principle of law that accused need not examine himself to prove and establish his defence, but accused can put forth his defence through the cross-examination of the complainant and through his statement recorded under Section 313 of the Code of Criminal Procedure. 10 Accordingly, on perusal of the cross-examination of the complainant, it appears that the accused has put forth his defence to the complainant in the cross-examination, and undoubtedly, the complainant has denied the same. However, the complainant has categorically admitted in his cross-examination that there was one 6 crap1129.11 transaction of the complainant with Sarda Cloth Stores; a partnership firm, prior to the disputed transaction in question in the present complaint. Pertinently, there is averment in the complaint that the accused is the partner of Sarda Cloth Stores. Hence, it is apparent that there was an earlier transaction between the complainant and the accused prior to the disputed transaction in question in the present complaint. Moreover, it is also material to note that the complainant admitted in the cross-examination that he did not verify the fact that who were the partners of Sarda Cloth Stores, a partnership firm, at the time of advancing the amount to it, which apparently strengthens the defence of the accused. 11 In the said context, the learned counsel for the applicant argued that a specific question was put to the accused while recording his statement under Section 313 of the Code of Criminal Procedure that the accused was partner of Sarda Cloth Stores, but the accused denied the same, and therefore, the learned counsel for the applicant submitted that the accused was not partner of Sarda Cloth Stores at the relevant time. However, I am not impressed by the said argument, since it is the very averment of the complainant in the complaint that the accused is the partner of Sarda Cloth Stores and he admitted in the cross-examination that he did not verify who were the partners of Sarda Cloth Stores at the time of advancing the 7 crap1129.11 amount to it, and hence, mere denial of the accused in his statement under Section 313 of the Code of Criminal Procedure will not come to the aid and assistance of the complainant. 12 Apart from that, it is the specific defence of the accused put forth by him through his statement under Section 313 of the Code of Criminal Procedure that there was an earlier transaction between the complainant and the accused in the year 2005 and disputed cheque in question was issued by the accused to him towards security. He also stated that there existed no legally enforcible debt at the time of issuance of disputed cheque in question. However, the complainant has filed the present complaint falsely. He also stated that he did not receive any notice from the complainant. He further stated that he is not liable to pay any legally enforceable debt to the complainant. 13 Accordingly, considering the specific defence of the accused in the cross-examination of the complainant and also under Section 313 of the Code of Criminal Procedure, and more particularly, the admission of the complainant in his cross- examination, as mentioned herein above, that there was a transaction between the accused earlier prior to the disputed transaction in question in the present complaint, it appears that the 8 crap1129.11 accused has proved and established the defence on preponderance of probability and the said defence appears to be probable. 14 In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability at the time of issuance of disputed cheque in question and the disputed cheque in question was issued by the accused to the complainant towards discharge of the said legally enforceable debt/liability partly or in whole. However, in the said context, the complainant has not produced any cogent documentary evidence and/or adduced any oral evidence to substantiate the same. Pertinently, although the complainant specifically averred in the complaint that the alleged cash amount of Rs. Two Lacs was handed over by him to the accused in presence of Suresh Motilal Kankariya and Santosh Hastimal Gandhi at Kada, it is curious to note that the complainant has not examined both the said witnesses for the reasons best known to him. Moreover, there is no documentary evidence produced by the complainant to prove and establish beyond reasonable doubt that the applicant handed over cash amount of Rs. Two Lacs to the respondent towards any loan on 26.1.2006, as alleged in the complaint. 15 In the said context, it is material to note that the applicant 9 crap1129.11 i.e. original complaint has given vital admission in his cross- examination that although he filed the case under Section 138 of the Negotiable Instruments Act against one Gopal Kashinath Sharma, but still he does not recognize him. He also admitted that he handed over hand loans to various persons, but does not keep the accounts thereof. Moreover, the complainant also admitted that he does not pay the income tax. Pertinently, although he has stated his occupation as business in the complaint, the complainant tried to improve the same in the cross-examination that he carries on business as well as agricultural activities. 16 Hence, the observation made by the learned Trial Court in the said context of unaccounted money, non-payment of the said amount of Rs.Two Lacs by the complainant to the accused by way of cross cheque, as required under Section 269SS of the Income Tax Act, cannot be faulted with, and the consequent finding, drawn by the learned Trial Court that the complainant failed to prove and establish the advancement of Rs.Two Lacs as well as legally enforceable debt/liability against the accused, also cannot be construed as erroneous. 17 In the circumstances, it is apparently clear that the complainant failed to prove and establish beyond reasonable doubt 10 crap1129.11 that there existed legally enforceable debt/liability at the time of issuance of disputed cheque in question by the accused as well as the complainant failed to prove and establish beyond reasonable doubt that the disputed cheque in question was issued by the accused to the complainant towards the discharge of said legally enforceable debt/liability partly or in whole, and hence, the conclusion drawn by the learned Trial Court in that respect is not unsustainable. 18 Moreover, the complainant has not proved and established any source of amount of Rs. Two Lacs and the observations made by the learned Trial Court to that effect that how such huge amount was available at the hands with the complainant on the day of 26 th January which is being public holiday, do not appear to be out of place. 19 Having the comprehensive view of the matter and after scrutinizing and assessing the evidence on record, the view adopted by the learned Trial Court while acquitting the accused is a possible view and same does not appear to be perverse and the reasoning adopted therefor also, apparently, cannot be faulted with, and hence, no interference therein is called for in the appellate jurisdiction, and hence, present application deserves to be rejected. 11 crap1129.11 20 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1129.11