Bombay High Court
Narayan S/O Kisnu Wakodikar vs State Of Mah. & Anor on 5 November, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 cra799.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Single Bench Criminal Appeal No.799 of 2008
APPELLANT: Narayan S/o Kisnu Wakodikar
Aged about 68 years, Occ. Business,
R/o Kurhadkarpeth, Nagpur.
Vs.
RESPONDENTS: 1] State of Maharashtra,
2] Ramesh S/o Natthuji Shende,
Aged about 68 years, Occ. Service,
R/o Plot No.616, Ward No.20,
Darshan Colony, Nandanwan Layout,
Nagpur.
Mr. N.G. Jetha Advocate for appellant
Mrs. A.R. Kulkarni, AGP for respondent No.1.
Mr. Y.B. Mandpe,Advocate for respondent No.2.
CORAM : MANISH PITALE, J.
RESERVED ON : 16/10/2019
PRONOUNCED ON : 05/11/2019
JUDGMENT
By this appeal, the original complainant has challenged judgment and order dated 06/10/2008, passed by the Court of Judicial Magistrate First Class and Special Court for Section 138 of the Negotiable Instruments Act, Nagpur (Trial Court), whereby the Trial Court has acquitted the respondent No.2 of offence under Section 138 of the Negotiable Instruments Act.
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2. The appellant had filed the complaint under Section 138 of the aforesaid Act in respect of dishonor of cheque for an amount of Rs.2,50,000/-, issued by the respondent No.2 for the reason "funds insufficient". It was claimed by the appellant that the said cheque was issued towards discharge of legal debt and liability, since the parties had entered into an agreement dated 26/11/2001, whereby the respondent No.2 had agreed to return earnest amount of Rs.2,50,000/- received by him from the appellant in connection with an agreement to sale executed between the parties in respect of house belonging to the respondent No.2. It was claimed that in the said agreement, reference was made to the said cheque and that this was sufficient proof of the fact that upon dishonor of said cheque and failure of the respondent No.2 to pay the amount even after receiving the notice from the appellant, an offence under Section 138 of the said Act was committed by the respondent No.2. The appellant led oral and documentary evidence in support of his case.
3. The respondent No.2 opposed the said complaint, by contending that a blank cheque given for security and blank signed papers were misused by the appellant and that, therefore, no offence under Section 138 of the Act is made out. The respondent No.2 claimed that an amount of Rs.1,40,000/- by way of four cheques was already paid to the appellant and that since the appellant had conceded in his cross-examination that there was no other transaction between the parties, it was evident that an amount of Rs.2,50,000/- was not due from the respondent No.2 to the ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 ::: 3 cra799.08.odt appellant and that this was clear case of misuse of blank cheque by the appellant. The respondent No.2 also led evidence in support of his contentions.
4. By judgment and order dated 06/10/2008, the Trial Court found that the evidence and material on record indicated that the appellant had failed to make out his case and that it was not possible to accept that the cheque in question was issued in connection with a legal debt. On this basis, the Trial Court acquitted the respondent No.2.
5. Mr. N.G. Jetha, learned counsel for the appellant submitted that the oral and documentary evidence on record was sufficient to indicate that the cheque in question had been issued by the respondent No.2 in discharge of legal debt and liability. It was submitted that such debt was specifically mentioned in agreement dated 26/11/2001, executed between the parties and that the reference to four cheques for amount of Rs.1,40,000/- had no connection with the said legal debt. It was submitted that the Trial Court had misinterpreted the oral and documentary evidence on record to reach erroneous findings, while acquitting the respondent No.2. It was submitted that the presumption under Section 139 of the aforesaid Act clearly operate in favour of appellant, which was not rebutted by the respondent No.2 and that, therefore, the present appeal deserved to be allowed.
6. On the other hand, Mr. Y.B. Mandpe, learned counsel for the contesting respondent no.2 submitted that the documentary evidence on record, when read with the crucial admissions given in cross-examination by the appellant, ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 ::: 4 cra799.08.odt sufficiently demonstrated that the appellant had failed to make out his case and that the Trial Court was justified in acquitting the respondent.
7. It was submitted that agreement dated 26/11/2001, at the bottom, recorded details of cheque for Rs.40,000/- paid to the appellant and that this fact supported the case of the respondent No.2 that cheques were already issued to the appellant, which were encashed, thereby indicating that even if the respondent No.2 was liable to pay an amount of Rs.2,50,000/- to the appellant, amounts were already received by the appellant and that there was no question of amount due to be paid to the appellant being Rs.2,50,000/-. It was submitted that this clearly indicated misuse of blank cheque given for security by the respondent No.2. On this basis, it was submitted that the appeal deserved to be dismissed.
8. Having heard the learned counsel for rival parties, the point that arises for consideration in the present appeal is, as to whether the Trial Court was justified in acquitting the respondent No.2 and holding that the appellant had failed to make out a case under Section 138 of the aforesaid Act.
9. It was the case of the appellant before the Trial Court that cheque in question was issued for an amount of Rs.2,50,000/- by the respondent No.2 (accused) towards legal debt and liability, which was acknowledged by the respondent No.2 in agreement dated 26/11/2001, executed between the parties. It was submitted that the said cheque was towards return of earnest money received by the respondent No.2 in ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 ::: 5 cra799.08.odt connection with the agreement to sale executed between the parties. It was submitted that when such documentary evidence was available on record, there was no reason for the Trial Court to have held that the cheque in question could not be said to have been issued in discharge of legal debt. It was submitted that presumption under Section 139 of the said Act arose against the respondent No.2 and that the payment of Rs.1,40,000/- by the respondent No.2 by way of four cheques concerned another transaction, which the Trial Court failed to take into consideration.
10. In this connection, it is an admitted position that if a presumption arose under Section 139 of the aforesaid Act, it was a rebuttal presumption and that once the accused was able to place on record material that created reasonable doubt about the nature of legal debt in discharge of which the cheque in question was allegedly issued, burden would be clearly on the complainant to satisfy the Court that the cheque in question was indeed in respect of legal debt or liability, which was relatable to the transaction that the complainant claimed to have entered into with the accused.
11. In the present case, the respondent No.2 claimed that although the amount of Rs.2,50,000/- towards earnest money was to be returned to the appellant, an amount of Rs.1,40,000/- was paid to him by way of four cheques, which were encashed by the appellant. It was further submitted that the cheque in question was a blank cheque, which was misused by the appellant and that when amount due to the appellant was far less than the amount of Rs.2,50,000/-, it was not believable that the respondent would have issued a ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 ::: 6 cra799.08.odt cheque for aforesaid amount. In this connection, attention of the Court was also invited to an endorsement made at the bottom of agreement dated 26/11/2001, wherein details of one of the four cheques were stated, demonstrating that the said cheque was issued for an amount of Rs.40,000/-, by the respondent No.2 in favour of the appellant. It is also an admitted position that amount of Rs.1,40,000/-, by way of four cheques, was indeed received by the appellant. Therefore, the respondent No.2 have placed sufficient oral and documentary evidence on record to rebut the presumption that arose against him under Section 139 of the said Act and that it was upon the appellant to discharge the burden of proving that cheque in question was indeed in discharge of legal debt or liability.
12. In this regard, the evidence of the appellant himself assumes significance. In cross-examination, the appellant conceded that except the said agreement, there was no other transaction that the appellant had with the respondent No.2. But, thereafter, when specific questions were put to him in respect of four cheques issued by the respondent No.2 and encashed by the appellant for total amount of Rs.1,40,000/-, the appellant claimed that the said cheques pertained to another transaction in respect of agricultural property and not with respect to the transaction which was relied upon by him in the present complaint. It is also an admitted position on record that appellant failed to place on record any material to indicate such separate distinct transaction pertaining to some agricultural properties between the parties. As noted above, in the initial portion of cross-examination the appellant himself had conceded that he ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 ::: 7 cra799.08.odt had no other transaction with the respondent No.2. Such nature of statement made in cross-examination by the appellant created a cloud of doubt in respect of the claim made by him in the complaint filed against the respondent No.2 and in this backdrop, it becomes clear that the appellant failed to properly discharge burden on him to prove that the cheque in question was issued in respect of legal debt or liability.
13. In this backdrop, it becomes clear that the view taken by the Trial Court in the present case was certainly a plausible view. When two views were possible in the present case and the Trial Court chose to accept the one in favour of the respondent No.2 (accused), no fault can be found with the approach adopted by the Trial Court, while acquitting the respondent No.2.
14. In view of above, it is found that there is no substance in the present appeal and accordingly, it is dismissed.
JUDGE MP Deshpande ::: Uploaded on - 06/11/2019 ::: Downloaded on - 07/11/2019 00:39:39 :::