Bombay High Court
Laxmikant Ganeshlal Jaiswal vs Vijay Ganeshlal Jaiswal And Another on 12 April, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.574 OF 2005
Laxmikant s/o Ganeshlal Jaiswal,
Aged about 40 years,
Occupation: Business,
Resident of Laxminivas,
Near Mira Mangal Karyalaya,
Killa Road, Mahal, Nagpur,
Tahsil and District Nagpur. ....... APPELLANT
...V E R S U S...
1] Vijay s/o Ganeshlal Jaiswal,
Aged about 58 years,
Occupation: Business,
Resident of Gadchandur,
Tahsil Korpana,
District Chandrapur.
2] State of Maharashtra. ....... RESPONDENTS
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Shri S. Ramaswamy, Advocate for Appellant.
Shri M.M. Agnihotri, Advocate for Respondent 1.
Shri N.B. Jawade, A.P.P. for Respondent 2/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
12 APRIL, 2018.
ORAL JUDGMENT
1] The appellant, who is the original complainant in Summary Criminal Case 14/2004 is aggrieved by the judgment ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 2 and order dated 16.08.2005 rendered by the Judicial Magistrate First Class, Bramhapuri, by and under which, the respondent 1-accused is acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short). 2] Heard Shri S. Ramaswamy, the learned Counsel for the appellant, Shri M.M. Agnihotri, the learned Counsel for the respondent 1-accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent 2/State. 3] The gist of the complaint under Section 138 of the Act is that the complainant and the accused are brothers, accused holds a CL-III licence (Country Liquor Shop) at Gadchandur, Tahsil Korpana, District Chandrapur and occupies a residential house of the complainant since January, 1990 as tenant. The tenancy agreement is oral. The accused agreed to pay rent of Rs.4000/- per month excluding electricity charges and property tax. The accused assured that as and when the rent amount is demanded, the same shall be paid in lump sum. The complainant demanded rent in the month of November, 2003 and the accused ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 3 issued cheque 419731 dated 18.11.2003 for Rs.3,60,000/- drawn on State Bank of India, Bramhapuri. The said cheque was dishonoured, the complainant issued statutory notice dated 05.12.2003 to the accused which was sent on the Nagpur and Gadchandur address of the accused. The accused avoided to receive the statutory notices and since he did not pay the amount of Rs.3,60,000/- covered by the cheque, the complaint is instituted.
4] The defence of the complainant, as is revealed from the trend and tenor of the cross-examination, the statement recorded under Section 313 of the Criminal Procedure Code, 1973 and the defence evidence is that the complainant was managing the country liquor shop "Vijay Wine Shop" from 1992 to 2002. The CL-III licnece was in the name of Smt. Chandrakalabai Jaiswal the mother of the complainant and the accused. The wife of the accused Smt. Mayadevi was inducted as partner in the licence although the marriage was dissolved on 29.11.2002. During the period the complainant was managing the country liquor shop, Smt. Chandrakalabai used to obtain signatures of the accused on ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 4 blank cheques and used to handover the blank cheques to the complainant to facilitate operation of the account in the name of Vijay Wine Shop. In 2002 Chandrakalabai handed over the management of the shop to the accused. The complainant did not return the cheque to Chandrakalabai or the accused and one blank cheque is misused to falsely implicate the accused in the prosecution under the Act. The defence is that the land and house at Gadchandur is owned and possessed by the accused and the claim of the complainant that he is the owner and the accused is a tenant is false. The accused further claimed that he did not receive the notice allegedly issued by the complainant. 5] The evidence of the complainant is broadly consistent with the averments in the complaint. The complainant has deposed that he issued legal notice on the address of the accused at Nagpur and Gadchandur by registered post and both the envelopes were returned back by the postal authority with the endorsement "not claimed". The complainant is subjected to a lengthy and searching cross-examination. It is elicited that the complainant objected to induction of the divorced wife of the ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 5 accused Mayadevi as partner and the order of induction of Mayadevi as partner was unsuccessfully challenged first before this court and then in appeal before the Excise Commissioner. It is elicited that the Civil Suit instituted by the complainant against the accused and others is pending. It is elicited that Vijay Wine Shop is managed by the accused since 2002. It is elicited that one of the account of Vijay Wine Shop was maintained at State Bank of India, Bramhapuri since 1983. The complainant is not aware as to who was the signatory or whether the said account was in existence till 22.11.2003. The complainant admits that he is not in possession of the document of permission for construction of house. The suggestion that the shop and residential house is owned by the accused, is denied. It is admitted that the complainant did not pay the Gram Panchayat tax of the house at Gadchandur prior to 2003-2004. The lengthy cross-examination makes an endeavour to demonstrate that the residential house at Gadchandur was always owned by the accused and that the disputed cheque was one of the blank cheques which was handed over to the complainant when he was managing Vijay Wine Shop and that the cheque was not issued to discharge an existing debt ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 6 or liability much less towards payment of rent. The effort of the cross-examiner is also to bring on record the strained relationship due to withdrawal of the management from the complainant and induction of the divorced wife of the accused as partner in the licence and to highlight the various litigations between the parties. 6] The accused examined Smt. Chandrakalabai, the mother of the accused and the complainant, in defence. She has deposed that the licence was in the name of her husband Ganeshlal, who expired in 1987, the licence was transferred in her name and later on she inducted Mayadevi as partner. She handed over the management of the shop to the complainant in the year 1992 and 2002 she withdrew the management from the complainant and handed over the same to the accused, which led to strained relationship between the complainant and the accused. She has supported the defence that blank cheques with signature of the accused were given to the complainant to facilitate operation of the bank account, when the complainant was managing the shop. The cheques were not returned and the disputed cheque is one such cheque, which is misused. She has ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 7 deposed that on 28.11.2003 she issued a registered notice to the complainant intimating that all blank cheques bearing his signature of the accused Vijay Jaiswal be treated as cancelled. Similar notice was issued by the accused to the complainant. She has deposed that the property situated at Gadchandur is owned and possessed by the accused and that the complainant has no right or interest in the said property. The complainant Laxmimant Jaiswal is not the owner of the house and the accused is not a tenant, is the deposition. In the cross-examination no specific suggestion is given to the witness that her evidence that blank cheques were handed over to the complainant, bearing the signature of the accused, and one cheque is misused, is false. In the absence of such a suggestion to the witness, it must be held that the evidence to that extent has gone unchallenged. It is elicited in the cross-examination that she is not aware about the bank account of the shop i.e. in which particular bank the account of the shop was opened. The witness immediately volunteered that the accounts are in Bramhapuri bank. It is elicited that she is not in a position to state whether that there was a cheque book in her name and that the witness did not transact any financial ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 8 business as regards the shop.
7] The learned Magistrate was pleased to record a finding that the complainant did not establish that the cheque was issued towards discharge of existing debt or liability. The learned Magistrate was alive to the statutory presumption under Section 139 of the Act. The finding recorded is that the statutory presumption is duly rebutted. I have closely scrutinized the evidence on record and the findings recorded by the learned Magistrate, and having done so, I do not find any infirmity in the approach or in appreciation of evidence. The complainant came up with a specific case that the cheque was issued towards payment of rent. Concededly, there is no documentary evidence to show that the accused is a tenant. No explanation is given by the complainant to justify the amount of Rs.3,60,000/-, indeed, the version of the complainant is that the accused orally assured that arrears of rent shall be paid as and when demanded. This version is not at all confidence inspiring. Be it noted, that Exh.91 is the building permit which is issued by the Gram Panchayat in the name of the accused. The evidence on record is sufficient to create ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 9 a reasonable doubt about the claim of the complainant that he is the owner of the house at Gadchandur and the accused is a tenant. It has come in the evidence that from 2002 the relationship between the complainant on one hand, and the accused and Smt. Chandrakalabai was strained. The complainant was deprived of the right to manage the shop. Concededly, there was a spate of litigation since the complainant challenged the induction of the divorced wife of the accused Mayadevi as partner. Apart from the fact that the version of the complainant that the accused is a tenant and he issued the cheque towards payment of arrears of rent is doubtful, it is improbable that in the situation obtaining the accused issued the cheque to clear the arrears of rent. The defence is more than probablized on the touchstone of preponderance of probabilities and the statutory presumption under Section 139 of the Act is duly rebutted. It is trite law, that the burden to rebut the statutory presumption is not to rebut the presumption beyond reasonable doubt. Suffice it if the accused is in a position to show that the case of the complainant is doubtful or improbable. The conscience of this court is satisfied that the view taken by the learned Magistrate is a possible view and no ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:52:40 ::: apeal574.05.J.odt 10 compelling case is made out for interfering with the judgment and order of acquittal.
8] The appeal is sans merit and is rejected.
JUDGE
NSN
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