{"id":20303,"date":"2010-03-10T00:00:00","date_gmt":"2010-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheshrao-vs-unknown-on-10-march-2010"},"modified":"2018-09-07T22:32:36","modified_gmt":"2018-09-07T17:02:36","slug":"sheshrao-vs-unknown-on-10-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheshrao-vs-unknown-on-10-march-2010","title":{"rendered":"Sheshrao vs Unknown on 10 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sheshrao vs Unknown on 10 March, 2010<\/div>\n
Bench: A.P. Bhangale<\/div>\n
                                                                 1\n\n\n                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                                                   \n                                     BENCH AT NAGPUR, NAGPUR.\n\n\n\n\n                                                                                     \n                                    CRIMINAL APPEAL NO:  627    \/2006\n\n\n    Sheshrao  s\/o  Krishnarao   Umredkar\n\n\n\n\n                                                                                    \n    Aged            years;      occu: Business\n    Proprietor  of M\/s Rakesh  Enterprises\n    Pathrabe Mohalla,   Reshim Oli\n    Budhwari,   Nagpur.          ...            ...                           APPELLANT\n\n\n\n\n                                                                    \n                      v e r s u s\n\n    1)                Shri H K Pande\n                                         \n                      Age : Major    M\/s  Hari Industries\n                      560  Pandit Malviya Road\n                                        \n                      Anand Cinema   Square\n                      Sitabuldi, Nagpur.\n\n    2)                State of Maharashtra. ..                                ...RESPONDENT\n       \n\n\n    ............................................................................................................................\n    \n\n\n\n                       Mr  S M Bhangde,  Advocate for appellant\n                       Mr Alok Upasani,  Advocate for Respondent No.1\n                       Mr K S Dhote, APP for Respondent No.2\n\n\n\n\n\n    ------------------------------------------------------------------------------------------------------------\n\n                                                            CORAM:   A.P.BHANGALE, J.\n                                                            DATED:    10th  March,  2010\n\n     JUDGMENT :   \n<\/pre>\n
     1                 By means of  this  appeal, the appellant  original  complainant is <\/p>\n
     challenging the validity   and legality of the   judgment and order passed by <\/p>\n
     learned Judicial Magistrate, First Class, Special Court under section 138 of the <\/p>\n
     Negotiable Instruments Act,   Nagpur ( hereinafter   referred to   as “N.I. Act”\n<\/p>\n
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\n                                                   2<\/span><\/p>\n
    for the purposes of brevity) who, by order  dated 29 th  June, 2006   passed in <\/p>\n
    Summary Criminal Case No. 2560\/2006  found the  respondent\/accused not <\/p>\n
    guilty for offence punishable under  section 138 of the N.I. Act and acquit the <\/p>\n
    accused.\n<\/p>\n
    2            The     facts   in   brief     are   that   :     According   to   complainant   M\/s <\/p>\n
    Rakesh Enterprises,  the accused Mr  H K Pande   for M\/s  Hari Industries   at <\/p>\n
    Nagpur had  transactions that the complainant had purchased certain goods, <\/p>\n
    such as, silk yarn,  raw material,   Beranas  silk  etc. during the year 1999.  It <\/p>\n
    is the case of the complainant that the accused had issued two cheques  –  one <\/p>\n
    cheque bearing  No.  368017  dated 17.8.1999  for a sum of Rs. 73, 810\/- and <\/p>\n
    another cheque bearing No.   368027       dated 5.9.1959   for   a sum of Rs.\n<\/p>\n
    40,000\/-. Both the cheques   were drawn upon State Bank of India, Nagpur <\/p>\n
    which were presented by the complainant through Nagpur Nagarik Sahakari <\/p>\n
    Bank, Nagpur Branch, on 16.10.1999;   but those cheques were returned on <\/p>\n
    18.10.1999 with remarks “insufficient funds”.   Thereafter  by demand notice <\/p>\n
    in   writing   dated   29.10.1999,       the   complainant   called   upon   the   accused <\/p>\n
    through the Advocate to pay outstanding   credit purchase     amount failing <\/p>\n
    which criminal case would be filed.   The demand notice was received  by the <\/p>\n
    accused   on   2nd  November,   1999   to   which   the   accused   gave   reply     dated <\/p>\n
    10.11.1999 and disputed the liability on the ground that cash payment  was <\/p>\n
    already made;    but the complainant did not return the cheques.  According <\/p>\n
    to   accused,   complainant had   accepted   cash amount for supplying   China <\/p>\n
    and Korea   thread but the goods   were not supplied nor   cash money was <\/p>\n
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\n                                                     3<\/span><\/p>\n
    returned back to the accused.     Under these circumstances, the accused had <\/p>\n
    demanded a sum of Rs. 40687.65\/-  paise along with interest at the rate of 24 <\/p>\n
    per annum,    on the amount due  along with 50   per cent  surcharge amount <\/p>\n
    payable towards in Sales Tax.   The reply  was  received by the Advocate Shri <\/p>\n
    Suryakant  Jaiswal (Exh.51)    on 20.11.1999.\n<\/p>\n
    3              The     complaint  was  lodged   on  4.12.1999.   After   verification  on <\/p>\n
    30th March,  2000,  the process was issued by order dated 29.7.2003  under <\/p>\n
    section 138 of the N.I. Act.\n<\/p>\n
    4              The complainant   in support of the complaint, filed an affidavit <\/p>\n
    stating   that   the     accused   Proprietor   of   M\/s     Hari   Industries   conducting <\/p>\n
    business of manufacturing  tusser silk   and  tusser yarn garments  at Nagpur, <\/p>\n
    is     a     regular   customer of     M\/s Rakesh Enterprises,   a proprietory firm <\/p>\n
    belonging   to complainant and he had purchased raw material on credit on <\/p>\n
    7.7.1999.   The accused had also purchased tusser china yarn   for a total  sum <\/p>\n
    of   Rs.   86,792.50\/-     paise   and   thereafter   also   bought   Benaras    silk.       It   is <\/p>\n
    pertinent to note that the  transactions in respect of purchase of goods  dated <\/p>\n
    7.7.1999 ; 17.7.1999 ; 24.7.1999;  14.8.1999  and 29.9.1999 were  averred in <\/p>\n
    the   complaint     as   various   dealings   between   the     complainant     and   the <\/p>\n
    accused.     The dealings were referred to in paragraph   4 of the   affidavit in <\/p>\n
    support of the complaint.   Thus, according to the  complainant,  the cheques <\/p>\n
    in  question   referred   above,       were   issued   from   the     accused     which   were <\/p>\n
    dishonoured  for  want of sufficient funds in the account of the accused.\n<\/p>\n
    5              It appears that the complainant   was cross-examined   at length <\/p>\n
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\n                                                    4<\/span><\/p>\n
    with  reference  to    the  affidavit filed  in support of the  complaint    and  the <\/p>\n
    documents       on   record.       It   is   pertinent   to   note   that   the   complainant   is <\/p>\n
    admittedly having business since last 15-years ; but  was not having  any CST <\/p>\n
    or  BST numbers. The complainant disputed  his signature on  Exh.84  which <\/p>\n
    appears vouchers  addressed to M\/s Rakesh Enterprises  from Hari Industries <\/p>\n
    which,   according   to   the   accused,   is   signed   by   the   complainant   for   having <\/p>\n
    received  sum of  Rs.1,40,000\/-  while complainant has admitted his signature <\/p>\n
    on   vakalatnama   (Exh.2)   and     complaint ( Exh.1).     At the  same time <\/p>\n
    he admitted that signature  appearing in complaint (Exh.1)       and signature <\/p>\n
    appearing in Article  No. A – (Exh.84)      are similar.     It is also suggested <\/p>\n
    that  cheques –  Exhs. 41 and 42  were given to the complainant as security.\n<\/p>\n
    According to learned Advocate for the   respondent\/accused,   the amount of <\/p>\n
    Rs.1,40,000\/-       was   paid   under   voucher     on   11.9.1999   which   was <\/p>\n
    acknowledged     by   the   complainant,       but   he   failed   to   return   the   cheques <\/p>\n
    given by way of security.   It is submitted by the learned Advocate for the <\/p>\n
    accused that the complainant has courage to deny the  fact of  reply  to  his <\/p>\n
    notice   from the accused, which was given as Exh.49.       When   confronted <\/p>\n
    with Exh.49,    he admitted that it  was legal reply    sent by the accused and <\/p>\n
    received by his counsel, who has   signed   acknowledgment Exh.50.       The <\/p>\n
    complainant   also   examined   Shri   Vijay   Deshpande,   Deputy   Manager,   State <\/p>\n
    Bank of India,   in order to prove the fact of dishonour of the cheques on the <\/p>\n
    ground that funds   were insufficient.       The accused in defence   examined <\/p>\n
    Handwriting Expert   Shri Ulhas Shriniwas   Athale, who examined   disputed <\/p>\n
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\n                                                   5<\/span><\/p>\n
    document   Article   -A   (Exh.   84),         which   is   debit   \/credit   voucher   dated <\/p>\n
    11.9.1999 along with admitted signatures of the complainant  and expressed <\/p>\n
    his   opinion     Exh.80       that   the   disputed   signature   Exh.77       and   signature <\/p>\n
    marked by him as   S-1   to   S-5 ( signature of the complainant)   are   of the <\/p>\n
    one  and the same person.   He deposed about his own  exhibit  80.   He was <\/p>\n
    cross-examined at length. It is true that he may not  have obtained degree in <\/p>\n
    the subject of  Forensic  Science but it cannot be overlooked that he is holding <\/p>\n
    Degree   in   Law       from   Nagpur   University   and   is       a   trained   Handwriting <\/p>\n
    Examiner,     with   experience   of   training   under   the   eye   of   late   Shri   C.T.\n<\/p>\n
    Bhange,   a Government Consultant   and possesses   experience of about 20-\n<\/p>\n
    years examining disputed documents and   giving expert opinion in various <\/p>\n
    Court   matters.   He   compared     admitted   signature   of   the   complainant <\/p>\n
    appearing   in   compliant   Exh.1    vakalatnama  signed   by   the   complainant, <\/p>\n
    affidavit   in  support  of   the   complaint     signed   by   him   along   with   signature <\/p>\n
    appearing in the disputed document and expressed his opinion that disputed <\/p>\n
    signature   D-1   is     made   by   the   same   person   who   made   the   comparative <\/p>\n
    signature marked S-1 to S-5.   Thus,  documentary evidence as also testimony <\/p>\n
    of Handwriting Expert,  apart from  affidavit of the accused in support of his <\/p>\n
    defence   vide   Exh.83,   is   put   forward   as   a     defence   that   accused   had   paid <\/p>\n
    Rs.1,40,000\/-   in cash on 11.9.1999 towards cheque amounts as well as for <\/p>\n
    an   advance   of   Korea   and   China   threads,   promised   to   be   supplied   by   the <\/p>\n
    complainant which was acknowledged     by the complainant as per Exh.84 <\/p>\n
    ( which was initially marked as Article A).     It is deposed by the  accused that <\/p>\n
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\n                                                 6<\/span><\/p>\n
    Exh.84 is  a receipt for a sum of Rs.1,40,000\/-  which bears the signature of <\/p>\n
    the complainant-Sheshrao  and contents of receipt are correct.   Under these <\/p>\n
    circumstances, it is contended on  behalf of the  accused that the accused had <\/p>\n
    led   ample evidence which can satisfy test   of any prudent   person so as to <\/p>\n
    disprove     the   accusation   made   against   him.       In   the   course   of   cross-\n<\/p>\n
    examination on behalf  of  the  complainant, accused  also confirmed  that he <\/p>\n
    had taken entry  of payment of Rs.1,40,000\/-  in  his account  book,   which <\/p>\n
    was paid to the complainant   towards advance payment of thread also; but <\/p>\n
    goods  were not   received in lieu  of the advance paid which was in excess of <\/p>\n
    the amount of the cheques.   It appears that the learned trial Magistrate has <\/p>\n
    considered the evidence  of the complainant as well as defence evidence led <\/p>\n
    by the   accused in the form of his testimony   as well as the evidence of the <\/p>\n
    Handwriting Expert. Under these circumstances,  it appears that the learned <\/p>\n
    trial   Magistrate   evaluated   the   evidence   led   by   the   rival   parties,   also <\/p>\n
    considered  acceptability as well as probative value of  the documents.\n<\/p>\n
    6            The important  ingredient of the offence under section 138 of the <\/p>\n
    N.I. Act   is   that the complainant must prove that the cheques   in question <\/p>\n
    were issued   towards  discharge of legally enforceable debt  or liability.    In <\/p>\n
    the  facts   and circumstances of the present  case,   it is found that  that there <\/p>\n
    were many  transactions between the complainant’s firm  and the firm of the <\/p>\n
    accused  from time to time  and it is specific defence of the accused that the <\/p>\n
    amount which was due from the accused to the complainant was paid  as also <\/p>\n
    the amount   was   advanced to the complainant in excess of the amount of <\/p>\n
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\n                                                   7<\/span><\/p>\n
    cheques   which   were   given   by   way   of   security   so   that  cheques   were   to   be <\/p>\n
    returned back by the complainant.   The documentary  evidence (Exh.84)  is <\/p>\n
    brought on record with the help of   Expert’s opinion   of   the Handwriting <\/p>\n
    examiner  with long experience  of  deposing  in the Court matters,  a well-\n<\/p>\n
    trained Law graduate   for to rebut the statutory presumptions which were <\/p>\n
    available  to the complainant under sections 118 and 139 of the N.I.Act.   The <\/p>\n
    accused by his own evidence     as well as   evidence of Handwriting Expert <\/p>\n
    succeeded to prove to  the contrary while  defending  to the accusations under <\/p>\n
    section 138 of the N.I. Act and brought on record the evidence  on the basis of <\/p>\n
    which   it     can   be   positively   said   that   the   burden   shifted   back   upon   the <\/p>\n
    complainant   to   produce   the   evidence   fairly     and   reasonably     to   establish <\/p>\n
    positively     that   the   cheques   were   issued   towards       discharge   of   legally <\/p>\n
    enforceable  debt  or liability.    The complainant could have produced books <\/p>\n
    of accounts in order to show   various   dealings which his firm had with the <\/p>\n
    firm  of   the    accused     and   the     exact  outstanding   dues.    The   accused   had <\/p>\n
    succeeded,   at   least,   on   preponderance   of   probability     that   the   amount   of <\/p>\n
    Rs.1,40,000\/-  was paid    under  voucher  Exh.84    to  the  complainant. Thus, <\/p>\n
    contrary  fact  was proved by the  accused  that the cheques were not issued <\/p>\n
    for   legally   enforceable   debt   or   liability.   The   complainant   failed   to   adduce <\/p>\n
    necessary   evidence   beyond   reasonable     doubt   to   establish   that   the     goods <\/p>\n
    were delivered to the  accused from time to time for  certain sum of money in <\/p>\n
    respect of which the price  was paid on the basis of cheques.   As the burden <\/p>\n
    shifted back to the complainant  after the  accused succeeded to establish that <\/p>\n
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\n                                                     8<\/span><\/p>\n
    sum of Rs.1,40,000\/-   was paid to the complainant   acknowledged by the <\/p>\n
    complainant   in         writing     as   per   Exh.84       (Article   “A”).   Under   these <\/p>\n
    circumstances the  ruling  in Krishna Janardhan  Bhat   vs. Dattatraya G.\n<\/p>\n
    Hegde   reported in AIR  2008 SC   1325 is  attracted because  existence of <\/p>\n
    legally recoverable  debt is  not  a matter of presumption  u\/s 139.    It merely <\/p>\n
    raise   a presumption in faovur  of the holder that cheque     was issued for <\/p>\n
    discharge of debt or liability and, as such,     the complainant   was liable to <\/p>\n
    prove   or   establish   the   fact   that   there   existed     legally     recoverable   debt <\/p>\n
    payable by the accused to the complainant   as on the date of the cheque in <\/p>\n
    question.       For     this   reason   the   learned   trial   Magistrate   was   justified     to <\/p>\n
    dismiss the complaint  and  acquit the accused of  offence punishable under <\/p>\n
    section 138 of the N I Act.\n<\/p>\n
    7              This Court  would stay off its hands   in  disturbing  the judgment <\/p>\n
    and   order   of     acquittal   for   the   simple   reason   that     there   is   always   a <\/p>\n
    presumption     of   innocence     in   favour   of   the   accused   which   is   basically   a <\/p>\n
    human right.   The judgment  and   order of  acquittal bolsters up further  the <\/p>\n
    presumption   of   innocence   and   when   it   appears   that   the   learned   trial <\/p>\n
    Magistrate evaluated the evidence properly in order to conclude the acquittal, <\/p>\n
    this Court   cannot be justified   in   disturbing the order of acquittal unless <\/p>\n
    there is a specific and compelling reason to overturn the acquittal or unless <\/p>\n
    grave   miscarriage   of   justice   has   resulted   from   the   impugned   order     of <\/p>\n
    acquittal.     In   my   opinion,       the   learned   trial   Magistrate   appears   to   have <\/p>\n
    applied his mind to the entire evidence on record led by the complainant  as <\/p>\n
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\n                                                  9<\/span><\/p>\n
    well   as   the   accused   and   arrived     at   a   finding   which   appears   based   on <\/p>\n
    reasonable   and probable view of the matter.   However,   in such   case, the <\/p>\n
    parties   may be left to resort       to   agitate the civil dispute   as permissible <\/p>\n
    according to law before appropriate   forum if they   so desire.         I am not <\/p>\n
    inclined to interfere with the impugned judgment  and order of acquittal  as <\/p>\n
    no ground is made out for interference. Appeal is  dismissed.\n<\/p>\n
                                ig                                               JUDGE\n\n    sahare\n                              \n      \n   \n\n\n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 15:41:58 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sheshrao vs Unknown on 10 March, 2010 Bench: A.P. Bhangale 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-20303","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSheshrao vs Unknown on 10 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sheshrao-vs-unknown-on-10-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheshrao vs Unknown on 10 March, 2010 - 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