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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 627 /2006
Sheshrao s/o Krishnarao Umredkar
Aged years; occu: Business
Proprietor of M/s Rakesh Enterprises
Pathrabe Mohalla, Reshim Oli
Budhwari, Nagpur. ... ... APPELLANT
v e r s u s
1) Shri H K Pande
Age : Major M/s Hari Industries
560 Pandit Malviya Road
Anand Cinema Square
Sitabuldi, Nagpur.
2) State of Maharashtra. .. ...RESPONDENT
............................................................................................................................
Mr S M Bhangde, Advocate for appellant
Mr Alok Upasani, Advocate for Respondent No.1
Mr K S Dhote, APP for Respondent No.2
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CORAM: A.P.BHANGALE, J.
DATED: 10th March, 2010
JUDGMENT :
1 By means of this appeal, the appellant original complainant is
challenging the validity and legality of the judgment and order passed by
learned Judicial Magistrate, First Class, Special Court under section 138 of the
Negotiable Instruments Act, Nagpur ( hereinafter referred to as “N.I. Act”
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for the purposes of brevity) who, by order dated 29 th June, 2006 passed in
Summary Criminal Case No. 2560/2006 found the respondent/accused not
guilty for offence punishable under section 138 of the N.I. Act and acquit the
accused.
2 The facts in brief are that : According to complainant M/s
Rakesh Enterprises, the accused Mr H K Pande for M/s Hari Industries at
Nagpur had transactions that the complainant had purchased certain goods,
such as, silk yarn, raw material, Beranas silk etc. during the year 1999. It
is the case of the complainant that the accused had issued two cheques – one
cheque bearing No. 368017 dated 17.8.1999 for a sum of Rs. 73, 810/- and
another cheque bearing No. 368027 dated 5.9.1959 for a sum of Rs.
40,000/-. Both the cheques were drawn upon State Bank of India, Nagpur
which were presented by the complainant through Nagpur Nagarik Sahakari
Bank, Nagpur Branch, on 16.10.1999; but those cheques were returned on
18.10.1999 with remarks “insufficient funds”. Thereafter by demand notice
in writing dated 29.10.1999, the complainant called upon the accused
through the Advocate to pay outstanding credit purchase amount failing
which criminal case would be filed. The demand notice was received by the
accused on 2nd November, 1999 to which the accused gave reply dated
10.11.1999 and disputed the liability on the ground that cash payment was
already made; but the complainant did not return the cheques. According
to accused, complainant had accepted cash amount for supplying China
and Korea thread but the goods were not supplied nor cash money was
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returned back to the accused. Under these circumstances, the accused had
demanded a sum of Rs. 40687.65/- paise along with interest at the rate of 24
per annum, on the amount due along with 50 per cent surcharge amount
payable towards in Sales Tax. The reply was received by the Advocate Shri
Suryakant Jaiswal (Exh.51) on 20.11.1999.
3 The complaint was lodged on 4.12.1999. After verification on
30th March, 2000, the process was issued by order dated 29.7.2003 under
section 138 of the N.I. Act.
4 The complainant in support of the complaint, filed an affidavit
stating that the accused Proprietor of M/s Hari Industries conducting
business of manufacturing tusser silk and tusser yarn garments at Nagpur,
is a regular customer of M/s Rakesh Enterprises, a proprietory firm
belonging to complainant and he had purchased raw material on credit on
7.7.1999. The accused had also purchased tusser china yarn for a total sum
of Rs. 86,792.50/- paise and thereafter also bought Benaras silk. It is
pertinent to note that the transactions in respect of purchase of goods dated
7.7.1999 ; 17.7.1999 ; 24.7.1999; 14.8.1999 and 29.9.1999 were averred in
the complaint as various dealings between the complainant and the
accused. The dealings were referred to in paragraph 4 of the affidavit in
support of the complaint. Thus, according to the complainant, the cheques
in question referred above, were issued from the accused which were
dishonoured for want of sufficient funds in the account of the accused.
5 It appears that the complainant was cross-examined at length
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with reference to the affidavit filed in support of the complaint and the
documents on record. It is pertinent to note that the complainant is
admittedly having business since last 15-years ; but was not having any CST
or BST numbers. The complainant disputed his signature on Exh.84 which
appears vouchers addressed to M/s Rakesh Enterprises from Hari Industries
which, according to the accused, is signed by the complainant for having
received sum of Rs.1,40,000/- while complainant has admitted his signature
on vakalatnama (Exh.2) and complaint ( Exh.1). At the same time
he admitted that signature appearing in complaint (Exh.1) and signature
appearing in Article No. A – (Exh.84) are similar. It is also suggested
that cheques – Exhs. 41 and 42 were given to the complainant as security.
According to learned Advocate for the respondent/accused, the amount of
Rs.1,40,000/- was paid under voucher on 11.9.1999 which was
acknowledged by the complainant, but he failed to return the cheques
given by way of security. It is submitted by the learned Advocate for the
accused that the complainant has courage to deny the fact of reply to his
notice from the accused, which was given as Exh.49. When confronted
with Exh.49, he admitted that it was legal reply sent by the accused and
received by his counsel, who has signed acknowledgment Exh.50. The
complainant also examined Shri Vijay Deshpande, Deputy Manager, State
Bank of India, in order to prove the fact of dishonour of the cheques on the
ground that funds were insufficient. The accused in defence examined
Handwriting Expert Shri Ulhas Shriniwas Athale, who examined disputed
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document Article -A (Exh. 84), which is debit /credit voucher dated
11.9.1999 along with admitted signatures of the complainant and expressed
his opinion Exh.80 that the disputed signature Exh.77 and signature
marked by him as S-1 to S-5 ( signature of the complainant) are of the
one and the same person. He deposed about his own exhibit 80. He was
cross-examined at length. It is true that he may not have obtained degree in
the subject of Forensic Science but it cannot be overlooked that he is holding
Degree in Law from Nagpur University and is a trained Handwriting
Examiner, with experience of training under the eye of late Shri C.T.
Bhange, a Government Consultant and possesses experience of about 20-
years examining disputed documents and giving expert opinion in various
Court matters. He compared admitted signature of the complainant
appearing in compliant Exh.1 vakalatnama signed by the complainant,
affidavit in support of the complaint signed by him along with signature
appearing in the disputed document and expressed his opinion that disputed
signature D-1 is made by the same person who made the comparative
signature marked S-1 to S-5. Thus, documentary evidence as also testimony
of Handwriting Expert, apart from affidavit of the accused in support of his
defence vide Exh.83, is put forward as a defence that accused had paid
Rs.1,40,000/- in cash on 11.9.1999 towards cheque amounts as well as for
an advance of Korea and China threads, promised to be supplied by the
complainant which was acknowledged by the complainant as per Exh.84
( which was initially marked as Article A). It is deposed by the accused that
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Exh.84 is a receipt for a sum of Rs.1,40,000/- which bears the signature of
the complainant-Sheshrao and contents of receipt are correct. Under these
circumstances, it is contended on behalf of the accused that the accused had
led ample evidence which can satisfy test of any prudent person so as to
disprove the accusation made against him. In the course of cross-
examination on behalf of the complainant, accused also confirmed that he
had taken entry of payment of Rs.1,40,000/- in his account book, which
was paid to the complainant towards advance payment of thread also; but
goods were not received in lieu of the advance paid which was in excess of
the amount of the cheques. It appears that the learned trial Magistrate has
considered the evidence of the complainant as well as defence evidence led
by the accused in the form of his testimony as well as the evidence of the
Handwriting Expert. Under these circumstances, it appears that the learned
trial Magistrate evaluated the evidence led by the rival parties, also
considered acceptability as well as probative value of the documents.
6 The important ingredient of the offence under section 138 of the
N.I. Act is that the complainant must prove that the cheques in question
were issued towards discharge of legally enforceable debt or liability. In
the facts and circumstances of the present case, it is found that that there
were many transactions between the complainant’s firm and the firm of the
accused from time to time and it is specific defence of the accused that the
amount which was due from the accused to the complainant was paid as also
the amount was advanced to the complainant in excess of the amount of
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cheques which were given by way of security so that cheques were to be
returned back by the complainant. The documentary evidence (Exh.84) is
brought on record with the help of Expert’s opinion of the Handwriting
examiner with long experience of deposing in the Court matters, a well-
trained Law graduate for to rebut the statutory presumptions which were
available to the complainant under sections 118 and 139 of the N.I.Act. The
accused by his own evidence as well as evidence of Handwriting Expert
succeeded to prove to the contrary while defending to the accusations under
section 138 of the N.I. Act and brought on record the evidence on the basis of
which it can be positively said that the burden shifted back upon the
complainant to produce the evidence fairly and reasonably to establish
positively that the cheques were issued towards discharge of legally
enforceable debt or liability. The complainant could have produced books
of accounts in order to show various dealings which his firm had with the
firm of the accused and the exact outstanding dues. The accused had
succeeded, at least, on preponderance of probability that the amount of
Rs.1,40,000/- was paid under voucher Exh.84 to the complainant. Thus,
contrary fact was proved by the accused that the cheques were not issued
for legally enforceable debt or liability. The complainant failed to adduce
necessary evidence beyond reasonable doubt to establish that the goods
were delivered to the accused from time to time for certain sum of money in
respect of which the price was paid on the basis of cheques. As the burden
shifted back to the complainant after the accused succeeded to establish that
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sum of Rs.1,40,000/- was paid to the complainant acknowledged by the
complainant in writing as per Exh.84 (Article “A”). Under these
circumstances the ruling in Krishna Janardhan Bhat vs. Dattatraya G.
Hegde reported in AIR 2008 SC 1325 is attracted because existence of
legally recoverable debt is not a matter of presumption u/s 139. It merely
raise a presumption in faovur of the holder that cheque was issued for
discharge of debt or liability and, as such, the complainant was liable to
prove or establish the fact that there existed legally recoverable debt
payable by the accused to the complainant as on the date of the cheque in
question. For this reason the learned trial Magistrate was justified to
dismiss the complaint and acquit the accused of offence punishable under
section 138 of the N I Act.
7 This Court would stay off its hands in disturbing the judgment
and order of acquittal for the simple reason that there is always a
presumption of innocence in favour of the accused which is basically a
human right. The judgment and order of acquittal bolsters up further the
presumption of innocence and when it appears that the learned trial
Magistrate evaluated the evidence properly in order to conclude the acquittal,
this Court cannot be justified in disturbing the order of acquittal unless
there is a specific and compelling reason to overturn the acquittal or unless
grave miscarriage of justice has resulted from the impugned order of
acquittal. In my opinion, the learned trial Magistrate appears to have
applied his mind to the entire evidence on record led by the complainant as
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well as the accused and arrived at a finding which appears based on
reasonable and probable view of the matter. However, in such case, the
parties may be left to resort to agitate the civil dispute as permissible
according to law before appropriate forum if they so desire. I am not
inclined to interfere with the impugned judgment and order of acquittal as
no ground is made out for interference. Appeal is dismissed.
ig JUDGE
sahare
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