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2008 DIGILAW 647 (BOM)

Vijay Rama Poojary v. Anand Modhe

2008-04-30

V.K.TAHILRAMANI

body2008
JUDGMENT 1. The applicant-original complainant has preferred this application for leave to appeal against the judgment and order dated 13.3.2007 passed by the learned Metropolitan Magistrate, 21st Court, Bandra, Mumbai in Case No. 421/S/2002. By the said judgment and order, the learned Magistrate acquitted the Respondent-accused of the offence under Section 138 of Negotiable Instruments Act. 2. I have heard the learned advocate for the applicant and the learned APP for the State. 2. I have perused the evidence which has been annexed by him as well as the judgment and order. 3. Mr.Toraskar, the learned advocate for the applicant has submitted that the learned Magistrate has taken into consideration only one aspect i.e. Exhibit-D-4. He has not taken into consideration the other evidence. As per the complainant, accused owed Rs.8,23,000/- to him. Accused returned Rs.3,43,000/-. Thus, an amount of Rs.4,80,000/- was due and payable by the accused. According to the complainant, the amount of Rs.4,80,000/- along with interest comes to Rs.5,74,000/-. The further case of the complainant is that accused gave cheque of Rs.5,75,000/- to the complainant which cheque was dishonoured and hence, he filed complaint. 4. The case of the accused is that in the month of August, 1998 he had given cheque of Rs.5,75,000/- as collateral security. The case of the accused is that he had returned amount of Rs.5,75,000/- to the complainant in cash. The accused asked the complainant to return the cheque, however, complainant stated that the said cheque was misplaced by him. In support of this contention, the accused has placed reliance on receipt Exhibit-D-4. The receipt is for Rs.5,75,000/-. In the said receipt, it is seen that the word "cash" is written twice. This document Exhibit-D-4 bears out the case of the accused that he returned Rs.5,75,000/- to the complainant in cash. In view of this document Exhibit-D-4, it is clear that there was no legally enforceable liability remaining. In view of this document, it was not necessary for the learned Magistrate to consider the rest of the evidence and there was no error in deciding the case mainly relying on Exhibit-D-4. Looking to the evidence, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 5. In view of this document, it was not necessary for the learned Magistrate to consider the rest of the evidence and there was no error in deciding the case mainly relying on Exhibit-D-4. Looking to the evidence, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 5. It is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar and C. Anthony Vs. K.G.Raghavan Nair (2003) 1 SCC 1 . In the case of Anthony C. Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. 6. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 7. In this view of the matter, application for leave to appeal is rejected.