1 crap715.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 715 OF 2011 Vishwanath s/o Konduji Pote ...Applicant [Original Complainant] VERSUS Gopalkrushna s/o Pandurang Kshirsagar ...Respondent [Original Accused] ..... Shri B.A.Dhengle, advocate for applicant Shri Milind M. Patil (Beedkar), advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 19th December, 2011 PER COURT : 1 Heard 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 12.11.2010, rendered by the learned Judicial Magistrate, First Class, Jalna, in S.T.C. No. 5714 of 2005, thereby acquitting the respondent (original accused), for the offence punishable under 2 crap715.11 Section 138 of the Negotiable Instruments Act. 3 The parties herein after referred to as per their original status i.e. ‘the complainant’ and ’the accused’. 4 I have perused the impugned judgment and order, dated 12.11.2010 and the R. and P. with the assistance of learned counsel for the parties. 5 The factual matrix of the case is as follows :- It is alleged that there were cordial relations between the complainant and the accused and the accused carried on the business of sale of tractors and he was in need of money for the said business to purchase the tractors. Hence, the accused demanded the amount therefor from the complainant. Accordingly, the complainant gave amount of Rs. Five Lacs to the accused by way of hand loan. After demand of the complainant, the accused issued Cheque No. 55867 (Exh.32), dated 4.4.2005 for Rs. Five Lacs. The complainant presented the said cheque for encashment purpose. However, it was dishonoured and returned unpaid for want of sufficient funds. Hence, the complainant issued notice to the accused on 7.10.2005. The said 3 crap715.11 notice was served upon the accused, but the accused failed to make the payment of the said cheque amount within the stipulated period. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act before the Trial Court. 6 After recording the verification of the complaint, process came to be issued against the accused under Section 138 of the Negotiable Instruments Act. Accordingly, the accused appeared in the complaint and his plea was recorded and the accused pleaded not guilty and claimed to be tried. 7 To substantiate the case of the complainant, the complainant examined himself, as well as examined one witness, namely Subhashchandra Malchand Badjate and the complainant adduced the oral evidence as well as produced the documentary evidence. On the said background, the accused neither examined himself nor examined any defence witness, but put forth his defence through cross-examination of the complainant and his witness, and also through his statement under Section 313 of the Code of Criminal Procedure. 8 Considering the oral and the documentary evidence 4 crap715.11 adduced/produced by the complainant, the initial presumption is in favour of the complainant under Sections 118 (a) and 139 of the Negotiable Instruments Act that the disputed cheque in question was issued by the accused to the complainant towards the discharge of the debt/liability partly or in whole. However, the said presumption is rebuttable, since presumption under Section 138 of the Negotiable Instruments Act is reversible presumption and the accused is required to rebut the said presumption and test required therefor is on preponderance of probability and not persuasive. 9 In the said context, the defence of the accused is two fold :- (1) The transaction was not of hand loan, but the complainant illegally lent the amount to the accused without having money lending licence, and accordingly, it was a money lending transaction, and Section 139 of the Negotiable Instruments Act is not attracted. (2) The accused has already paid entire amount to the complainant and at the time of issuance of cheque there was no liability on him, and therefore, the disputed cheque in question was not issued by him for legally recoverable debt. 5 crap715.11 10 As stated herein above, the accused put forth his defence through cross-examination of the complainant and his witness and through his statement under Section 313 of the Code of Criminal Procedure. 11 Hence, in the said context, coming to the cross- examination of the complainant, pertinently in para no.3 thereof, the complainant has changed his version about payment of money by the accused. At the first place, the complainant deposed that on 6.1.2005 the accused demanded Rs.Five Lacs to him by way of hand loan, but he again changed his version and stated that the said amount was asked by Kailas Kshirsagar. He has specifically stated that the accused, namely Gopalkrushna Kshirsagar did not demand the amount from him. He has further specifically stated that Gopalkrushna did not demand amount of Rs.Five Lacs for the purpose of purchase of tractor. He again changed his version and stated that Kailas Kshirsagar and Vijay Kshirsagar had entered into partnership with him and for that business they demanded the amount from him. 12 Accordingly, there is variance in the pleading in the complaint and the evidence of the complainant. It is also apparent that the complainant has changed his version and the observations 6 crap715.11 made by the learned Trial Court in para no. 4 of the impugned judgment that from the changing version of complainant it is crystal clear that the contentions raised in the complaint that accused demanded Rs.Five Lacs by way of hand loan for the purpose of tractor business is incorrect, and para no.3 of the cross-examination clearly states that amount was not asked by the accused as hand loan from the complainant and Kailas Kshirsagar and Vijay Kshirsagar are not the accused before the court, since name of the accused is Gopalkrushna, and therefore, the amount which was taken by Kailas Kshirsagar and Vijay Kshirsagar cannot be recovered from the accused by fastening the liability on him and the consequent observation that even if it is presumed that cheque was issued by the accused to the complainant, it cannot be said that it was issued for legally recoverable debt, cannot be faulted with. 13 Moreover, the complainant also admitted in the cross- examination that the accused has repaid the total amount of Rs.Five Lacs to him, as well as he admitted the details regarding the payment of the said amount. Hence, the learned Trial Court observed that when the entire amount was paid to the complainant, there was no legal liability on the accused to issue cheque to the complainant, which leads to the position that there was no reason for the accused to issue cheque in favour of the complainant, when he 7 crap715.11 has already paid the entire amount, and hence, there is sufficient reason to hold that the cheque was not issued for the consideration on the date mentioned thereon and the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act and the said observation cannot be construed as erroneous. 14 As regards another defence of the accused in respect of money lending transaction, the complainant has admitted in para 9 of the cross-examination that criminal complaint was filed against him in the court of the Judicial Magistrate, First Class, Jalna regarding illegal money lending business. He further admitted that the accused has also filed complaint regarding money lending business without license. He also admitted that the Assistant Registrar conducted raid at his house and 22 registered sale deeds, 7/12 extracts of 36 lands and 50 blank cheques were seized therein. Admittedly, the complainant has not produced any money lending license on record. Hence, considering the evidence on record and the provisions of the Money Lending Act, the learned Trial Court has observed that the complaint is running money lending business without any license and loan advanced by money lender without any license is not debt legally recoverable, and apparently, the said finding is not erroneous. Accordingly, it is apparent that the accused has rebutted the presumption on preponderance of probability. 8 crap715.11 15 In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused on the date of issuance of disputed cheque in question and disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable debt/liability partly or in whole. However, the complainant has not produced any cogent evidence, documentary or oral, to substantiate the said proposition. 16 Apart from that, as regards disputed cheque in question (Exh.32) and the letter issued by the Canara Bank (Exh.33) in respect of return of the said cheque, admittedly the disputed cheque in question does not bear any seal of the Bank and the complainant has not produced any cheque return memo on record, to raise the presumption under Section 146 of the Negotiable Instruments Act. However, the complainant has produced letter issued by the Bank (Exh.33) disclosing that the said cheque was returned due to insufficient funds. However, the accused disputed the said letter and the learned Trial Court has rightly observed that the complainant has not examined the concerned Manager to prove the contents of the said letter, and consequently, to prove the dishonour of the disputed cheque in question, and the said finding, apparently, cannot be faulted with. 9 crap715.11 17 In the circumstances, having the comprehensive view of the matter, 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. Moreover, the finding given by the learned Trial Court while acquitting the accused also apparently is not erroneous. Hence, no interference therein is called for in the appellate jurisdiction, and therefore, the present application deserves to be rejected. 18 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is rejected. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap715.11