Bombay High Court
Bhausaheb Deorao Patil Shetkari ... vs State Of Maharashtra Thr. Pso Arni, ... on 21 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal393.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.393 OF 2006
Bhausaheb Deorao Patil,
Shetkari Sahakari Ginning And Pressing
Society Ltd., Jawala (Reg.No.5),
through its Manager, Shri Gunwant
Deorao Dhaye, R/o Jawala, Tq. Arni,
District Yavatmal. .... APPELLANT
VERSUS
1) State of Maharashtra,
through the P.S.O. Arni,
District Yavatmal.
2) Istar Ahasanbhai Koshish,
Aged about 48 years,
Occupation - Business,
R/o Neharu Nagar (Abhivandan),
Yavatmal, District Yavatmal. .... RESPONDENTS
______________________________________________________________
None for the appellant,
Smt. M.H. Deshmukh, Addl.P.P. for respondent No.1,
Shri Subhan, Advocate h/f. Shri Firdos Mirza, Advocate for respondent
No.2.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 21
SEPTEMBER, 2017
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2 apeal393.06
ORAL JUDGMENT :
The Counsel appearing for the appellant was absent on the last date of hearing. Record reveals that the Counsel for the appellant has not collected the paper-book. By order dated 08-9-2017, the appellant was directed to pay costs of Rs.201/- and the appeal was directed to be listed in the week commencing from 18-9-2017. The appellant has not paid the costs and there is no appearance on behalf of the appellant.
With the assistance of Smt. M.H. Deshmukh, learned Additional Public Prosecutor for respondent 1 and Shri Subhan, learned Counsel holding for Shri Firdos Mirza, learned Counsel for respondent 2, I have scrutinized the original record and I propose to decide the appeal on merits consistent with the dictum of the Hon'ble Supreme Court in the case of Bani Singh and others vs. State of Uttar Pradesh reported in (1996) 4 SCC 720.
2. The challenge is to the judgment and order dated 11-4-2005, delivered by the learned Judicial Magistrate First Class, Digras in Criminal Complaint Case 2152/2004, by and under which respondent 2 is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:55:12 ::: 3 apeal393.06 "Act"). The complainant is a co-operative society. The gist of the complaint under Section 138 of the Act is that respondent 2 (hereinafter referred to as the "accused") took the factory of the complainant on lease for the year 2000-01 on rent of Rs.2,24,888/-. The accused also agreed to incur expenses for maintenance, machinery repairs, electricity charges, labour payments, insurance charges, etc. in addition to the rent. The complaint states that as on 30-6-2001 an amount of Rs.1,68,907/- was recoverable from the accused and on that day the accused issued cheque 14396 for Rs.1,00,000/- as part payment. The said cheque was dishonoured, statutory notice was issued, since the accused did not comply with the notice, the complaint was instituted.
3. The complainant examined one Gunwant Dhaye, the Manager of the complainant as C.W.1. He has deposed that as per the agreement, the accused is liable to pay Rs.1,68,907/- to the complainant as on 30-6-2001, that on the same day the cheque was issued as part payment and was subsequently dishonoured for want of sufficient funds in the account of the accused. In the cross- examination, C.W.1 admits that the complainant had asked the accused to furnish bank guarantee of Rs.1,00,000/- and since the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:55:12 ::: 4 apeal393.06 accused could not furnish the bank guarantee, he gave post-dated cheque of Rs.1,00,000/- dated 30-6-2001. C.W.1 has further deposed that the amount recoverable as on 30-6-2001, even according to the resolution Exhibit 46 of the complainant society, is Rs.1,26,845/- and not Rs.1,68,907/-. C.W.1 further admits the payment of Rs.7,500/- on 22-12-2000, Rs.60,000/- on 09-2-2001, Rs.24,000/- on 13-1-2001 and Rs.7,000/- on 28-4-2001 by the accused. He has admitted receipt of total amount of Rs.99,500/- from the accused and has further admitted that he is not in a position to tell as to how much amount is recoverable from the accused and how much amount has been paid by the accused. It is further evident from the evidence of C.W.1 that the accounts between the complainant and the accused were not settled. C.W.2 who is the President of the complainant has admitted that the cheque of Rs.1,00,000/- was given on 30-4-2001 in lieu of bank guarantee. He has admitted that as on 30-4-2001 nothing was due and payable by the accused and then C.W.2 has volunteered that since accounts were not settled as on 30-4-2001, the amount due as on 30-4-2001 was not known.
4. The accused has examined himself at Exhibit 59. He states that when the cheque was issued, there was no amount due and ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:55:12 ::: 5 apeal393.06 payable to the complainant. The accounts were not settled at any point in time. He states that it was in 2000 that he issued the post- dated cheque to the complainant and that too since he could not furnish the bank guarantee. He has deposed, by giving details of the payment made, that no amount was due to the complainant society as on 30-6-2001.
5. The learned Magistrate has recorded a finding of fact that the cheque was issued as security and more importantly that the accounts were not settled, and existing liability or debt is not proved. The learned Magistrate has recorded a categorical finding in paragraph 30 of the judgment impugned that no amount was due and payable when the cheque was issued, the complainant has not filed the statement of account on record, no evidence is adduced to show that any amount was due and payable by the accused to the complainant as on 30-6-2001. The learned Magistrate has considered the entire evidence on record and the appreciation of evidence is unexceptionable. The finding recorded that it is not proved that the cheque was issued towards existing liability or debt, is the only finding which could have been recorded in the teeth of the evidence on record, particularly the admissions given by C.W.1 and C.W.2 in the cross- ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:55:12 :::
6 apeal393.06 examination. At any rate and in any event the learned Magistrate has taken a possible or plausible view and the view is not certainly perverse. I see no reason to interfere in the judgment of acquittal.
The appeal is dismissed. Bail bond of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:55:12 :::