1 crapn1874.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1874 OF 2010 Ishwar Nagosing Rajput, Age: 40 years, Occ: Agriculture, R/o. Amoda, Taluka Shirpur, District Dhule. ...APPLICANT VERSUS 1. Prakash Bhika Gurav, Age: 45 years, Occ: Contractor, R/o. Shirpur Patil Wada, Taluka Shirpur, Dist. Dhule. 2. The State of Maharashtra. ...RESPONDENTS ... Mr. S.P.Shah, Advocate for applicant. Mr. M.S. Deshmukh, Advocate for respondent No.1. Mr. S.G. Nandedkar, A.P.P. for respondent No.2. ... CORAM: S.S. SHINDE, J. DATE : 22ND FEBRUARY, 2011 PER COURT : Heard learned Counsel for the respective parties. 2. This application is filed by the 2 crapn1874.10 applicant-original complainant, challenging order dated 03-03-2010 passed by the learned Judicial Magistrate, First Class, Shirpur District Dhule in S.C.C. No. 368 of 2007. 3. Learned Counsel appearing for the applicant submitted that, learned Magistrate has erred in acquitting the accused, without appreciating the evidence and contention of the applicant. The trial Court failed to draw the presumption under Sections 139 and 138 of the Negotiable Instruments Act. The trial Court unnecessarily embarked upon the scrutiny as to how did the complainant got the money to give to the accused and as to the existence of debt of liability. It is further submitted that, it is the duty of the accused to explain as to how the cheque fell in the hands of the complainant. This contention of the complainant has not been properly appreciated by the trial Court. It is further submitted that, unless the presumption is discharged by the accused under Section 139, the 3 crapn1874.10 Court cannot be turn back on the complainant to establish the liability beyond reasonable doubt, so long as this presumption stands, assignment of the burden on the complainant will go against the object and intent of the legislative scheme. It is further submitted that no any satisfactory evidence was laid on the side of the accused to show that there is no debt or liability in whole or in part and the cheque was not issued by the accused. It is further submitted that, the trial Court has not properly appreciated and considered that the accused did not stop payment of the cheque through his bank nor reported the misuse of the cheque to the police, hence, adverse inference ought to have been drawn against the accused. The trial Court erroneously reached to the conclusion that the complainant has failed to discharge initial burden. The trial Court has also committed error in considering the aspect of financial capacity of the appellant without there being any 4 crapn1874.10 challenge from the accused. Learned Counsel for the applicant further submitted that, the notice issued by the complainant was not accepted by the respondent and therefore, adverse inference should be drawn against the accused for not replying the notice. He further submitted that, once signature is admitted on the cheque, in that case, it is for the accused to discharge burden under Section 139 of the Negotiable Instruments Act. Learned Counsel invited my attention to the judgment of this Court in the case of Hemant Pavel Gracias vs. Socorro Santan Fernandes reported in 2008(1) Mh.L.J. 505 and submitted that, silence on the part of the respondent-accused in not replying to the statutory notice is a strong circumstance which reflects the falsity of the case of the accused. He placed further reliance on the judgment of the Hon'ble Supreme Court in the case of Rangappa vs. Mohan reported in AIR 2010 SC 1899 and submitted that, very fact that accused had failed to reply 5 crapn1874.10 statutory notice under Section 138 of the Act, leads to inference that there was merit in complainant's version. Therefore, Counsel would submit that, the matter requires consideration and hence, application may be allowed. 4. On the other hand, learned Counsel for the respondent submitted that, the address of the complainant which was given on the notice and envelope was incorrect and wrong address. He was aware about giving such wrong address. The trial Court has drawn inference that the complainant has intentionally given the wrong address so that if the reply is given by the accused-respondent, it will not be received by the complainant. Counsel further submitted that, the trial Court has observed in the impugned judgment that behavior of the complainant was doubtful. Learned Counsel further invited my attention to the cross examination of the complainant and submitted that, in cross examination the contradictory statements are made by the complainant, which made his 6 crapn1874.10 evidence full of infirmity and doubtful. Therefore, the trial Court, after taking into consideration the statement of the complainant in its entirety, found that the complaint filed by the complainant is not genuine. Counsel placed reliance on the findings and reasons recorded by the trial Court and submitted that, the findings and reasons recorded by the trial Court are inconsonance with the evidence on record. It is further submitted that, the respondent had taken defence that the respondent has never borrowed Rs.1,00,000/- from the complainant. The complainant has no financial capacity to give Rs.1,00,000/-. Further defence taken by the respondent was that, by illegal means, said cheque is procured by the complainant. Therefore, according to Counsel for the respondent, possible defence was taken and same has been accepted by the trial Court. Therefore, he would submit that the application seeking leave to appeal may be rejected. 7 crapn1874.10 5. I have given due consideration to the submissions of the learned Counsel appearing for the respective parties and also perused the impugned judgment and order and also record and proceedings made available and I am of the considered opinion that, the complainant did not approach the trial Court with clean hands. As observed by the trial Court and as it appears from the cross examination of the complainant that, the address which was mentioned by him on the envelope containing notice and also on the notice is wrong/incorrect address. The inference drawn by the trial Court that, the complainant had given wrong address so as to see that if the reply to the notice is given by the respondent, it should not reach to the complainant, appears to be correct. It is admitted position that, the address given by the complainant while issuing notice to the respondent was incorrect address. It is also pertinent to note that, 8 crapn1874.10 nowhere either in the application or before the trial Court, it is brought on record by the complainant that on which date, the amount of Rs.1,00,000/- was given to the respondent. Though the complainant has stated that, on the date on which Rs.1,00,000/- was given to the respondent, the cheque was given as security towards the transaction by the respondent. However, not mentioning of any particular date on which such amount was given creates doubt about genuineness of the complaint. Though learned Counsel for the applicant has submitted that, it is admitted position that the respondent has accepted his signature on cheque, however, from reading defence of the respondent, it does not appear so. When the respondent has denied any transaction with the complainant, it was incumbent upon the complainant to bring on record agreement if any between himself and the respondent or at least to bring on record by cogent evidence, on which date such transaction is entered between the parties. The trial Court in detail, has examined the evidence 9 crapn1874.10 of the complainant. On perusal of the cross examination of the complainant, he has made a statement that some of the amount was withdrawn from the bank and from Yashwant Patpedhji out of Rs.1,00,000/- which was given to the respondent. However, again in his statement before the Court he says that he has not withdrawn money either from bank or Patpedhi. Therefore, the trial Court has reached to the conclusion that the complainant is not coming before the Court with truth. He is making contradictory statement. He is not able to bring on record the date on which transaction has been entered and dismissed the complaint filed by the complainant. 6. As stated earlier, the person approaching the Court, has to approach the Court, with clean hands. In the instant case, the complainant had given his wrong/incorrect address while issuing notice to the respondent. Therefore, the inference drawn by the trial Court that the complainant did it with intention so as to see 10 crapn1874.10 that the reply given by the respondent to the notice of the complainant should not reach to him. Apart from this, from the perusal of the evidence brought on record, it appears that the trial Court has also considered the other aspects including economical source of the complainant. The complainant in his evidence has admitted that, he is earning Rs.7000/- to 8000/- from agricultural source. He is running grocery shop and from the said business, he is not getting substantial amount. His economical condition is not good. Along with him, there are total eight family members including his wife, mother, and five children, in his family. Therefore, the trial Court reached to the conclusion that, even there is no enough financial source to the complainant so as to believe his words that he did advance loan of Rs.1,00,000/- to the respondent. The trial Court has also discussed the evidence. The contention of the complainant that the complainant is prompt in maintaining his account is considered by the Court and it is observed that, nothing was 11 crapn1874.10 brought on record to show that the complainant has maintained account book or has effected entry in his account book about his transaction with the respondent. 7. Therefore, in my opinion, viewed from any angle, the view taken by the trial Court is possible view and same is taken in consonance with the evidence brought on record. If the entire evidence is considered in its entirety, it leads to the conclusion that the complaint filed by the complainant is not genuine. The evidence of the complainant about how the amount of Rs.1,00,000/- was collected, also suffers from self contradiction. The complainant has not approached the Court with clean hands. The possible defence was taken by the respondent and thereafter, it was for the complainant to bring on record convincingly that such transaction was entered between himself and the respondent and amount of Rs.1,00,000/- was given to the respondent. Therefore, in my opinion, no case is 12 crapn1874.10 made out to entertain this application. Even if it is assumed for a moment that another view is possible, that is no ground to interfere in order of acquittal. The evidence brought on record by the complainant does not lead to the only conclusion that, the respondent has committed offence as alleged by him. For all these reasons, the application seeking leave to appeal stands rejected. 8. Original Record and Proceedings be sent back, forthwith, to the concerned Court. [ S.S. SHINDE, J.] sut/feb11/crapn1874.20