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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.485 of 2007
Vinayak son of Wamanrao
Thakare,
aged about 65 years,
occupation - Agriculture,
resident of Camp Area,
Amravati,
Tq. & Distt. Amravati. .... Appellant.
[org. complainant]
Versus
1. The State of Maharashtra.
2. Laxmikant Govindprasad
Ganediwal,
aged about 64 years,
occupation - business,
resident of New Swastik Nagar,
Badnera Road,
Amravati,
Tq. & Distt. Amravati. .... Respondents.
[Org. Accused]
*****
Mr. A.V. Gawande, Adv., for the appellant.
Mr. V.A. Thakre, Additional Public Prosecutor for the
respondent no.1.
Mr. V.M. Deshpande, Advocate for respondent no.2.
*****
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CORAM : A.H.JOSHI, J.
Date : 08th September,2008.
ORAL JUDGMENT :
1. This is an appeal against acquittal.
2. Heard learned Advocate Mr. A.V. Gawande for
the appellant, learned Additional Public Prosecutor Mr.
A.V. Thakre for respondent no.1 and learned Advocate
Mr. V.M. Deshpande for respondent no.2.
3. This Court had heard this case from time to
time. After completing the hearing on merits, on 1st
September, 2008, this Court gave an indication to the
respondent no.2 that the eventuality of hearing the
accused on sentence is about to arise and, therefore,
directed the presence of accused on 8th September, 2008.
Accordingly, the accused is present.
F a c t s
4. Though the accused has denied any liability
and has averred that cheque was given to complainant,
certain matters are either admitted or proved, namely:-
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[a] Complainant had kept a sum of Rs.25,000-00
as a “Dharohar” with the respondent no.2.
[b] Admittedly, the respondent no.2 passed a
“Dharohar Chiththi”.
[c] [i] various payments made by the accused to
the complainant,
[ii] service of notice,
[iii]legality thereof etc., and
[iv] payment by the accused to the complainant
of Rs.27,400-00 between March, 1997 till
2002,
5. The document of “Dharohar” is at Exh.22. It
consists of rate of interest, which is described as
follows:-
“Rate of Interest – 1.6.”
6. Apparently, it is ambiguous as to what is the
periodicity of agreed rate of interest. However,
parties have admitted that it is “1.6 per cent per
month.”
7. It is also admitted that the amount paid by
the accused matches with the rate of interest payable
at the interval of every four months, as he has paid
periodically an amount of Rs.1600-00 at the end of
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every four months on most occasions.
8. Accused has attempted to rely upon an
admission of the complainant that as the amount was
given on “Dharohar”, it did not bear interest.
Reliance is placed on complainant’s admission in the
cross-examination. The accused, however, admits in his
examination that he has paid towards interest, and also
admits execution and contents of Exh.22, the “Dharohar
Chitthi”.
9. After hearing the parties, in paragraph no.15,
learned Trial Court has recorded a finding, which reads
as follows:-
“15. Thus, considering the evidence
adduced by the accused, in my opinion the
defence raised by accused is probable one.
It can be said that on 3/4/2002 there was
no debt in existence against the accused
and therefore, it can be said that, the
cheque in question Ex.23 was not issued in
discharge of legally enforceable debt.
Hence, I answer point No.1 in thenegative.”
[quoted from pages 77 and 78 of the paper-book of
Criminal Appeal]
10. While the learned Trial Judge accepted the
fact that the “Dharohar Chiththi” consists of a promise
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to pay interest at the rate of 1.6 at monthly rate,
yet, the Trial Court has impliedly held that the amount
of Rs. 27,400-00 received by the complainant was
towards principal amount. The findings recorded in para
15 are seen to be totally contrary to the facts on
record which are duly proved, and are emerging from
admitted documents.
11.
The accused is a trader and he is supposed to
have maintained accounts. He has not brought forward
documents in his possession and control from which he
could have at least made an attempt to demonstrate as
to how the amount paid every four months was accounted
for by him. Had the payment been made towards
satisfaction of part of principal amount, there would
have been a corresponding reflection in the books, in
the account of the accused and it would have been shown
that the amount payable under “Dharohar” was wiped out
upon completion of refund of Rs.25,000-00. The accused
has, however, failed to bring on record such best
evidence in his control and possession.
12. Moreover, what Trial Court has done is
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recording rival submissions in para nos. 13 and 14 and
dictum is recorded in para 15, but reasons thereto are
nowhere seen.
13. This Court, therefore, holds that the findings
contained in para no.15 quoted in para no.9 above are
not just based on totally erroneous appreciation of
oral as well as documentary evidence, but are perverse.
14.
In the circumstances, the Judgment impugned,
therefore, deserves to be reversed and set aside. The
appeal is allowed and accused is convicted for offence
punishable under Section 138 of the Negotiable
Instruments Act.
15. Learned Advocate for the accused and accused,
who is present, were called to make submission on the
sentence and I have heard them.
16. The accused, who is present in the Court, at
this stage, sought time to negotiate and settle the
matter. The matter was accordingly adjourned for half
an hour.
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17. On resuming hearing, parties have filed
Consent Terms which are taken on record and which
consist of following terms:-
“1] That the Respondent No.2 shall pay
Rs.45,000/- (Rs. Fourty Five Thousand only)
to the Appellant as full and final
settlement in respect of dispute relating
to the cheque in question.
2} The amount of Rs.45,000/- shall be
paid by Respondent no.2 to Appellant onThe
24.12.2008 to the Appellant without fail.
Appellant
accordingly.”
shall issue receipt
18. In view of these Consent Terms, this Court
makes an order in terms of Compromise Pursis and this
Court further directs that if the promise to pay amount
of Rs.45,000-00 [rupees forty-five thousand only] by
Demand Draft drawn on a Nationalized Bank on or before
24th December, 2008, is not fulfilled before due date,
in that event, the sentence shall be as follows:-
In the event of failure to pay as per Consent
Terms, the accused is sentenced to suffer Rigorous
Imprisonment for two years and pay a fine of
Rs.50,000-00 [rupees fifty thousand only], and in
default, suffer imprisonment for six months. The
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amount of fine, if recovered, be paid to thecomplainant by way of compensation.
JUDGE
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