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2008 DIGILAW 661 (BOM)

Clint B. Rodrigues. v. State of Maharashtra

2008-05-02

V.K.TAHILRAMANI

body2008
SMT.V.K.TAHILRAMANI,J. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 16.10.2007 passed by the learned Metropolitan Magistrate, 21st Court, Bandra, Mumbai in C.C. No.24/SS/2006. By the said judgment and order, the learned Magistrate acquitted the respondent No.2-orig. accused of the offence punishable under Section 138 of N.I. Act. 2. Heard the learned Counsel for the Applicant-Orig.complainant. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. 3. The case of the complainant is that he had advanced loan of Rs.7,23,000/- to the accused and the cheque in question was issued in respect of the legally enforceable liability, which arose out of the loan given by the complainant. 4. No documentary evidence has been produced by the complainant in respect of such a huge loan being advanced to the accused. The complainant has not given specific dates or the specific amounts which were advanced to the accused on such dates. No accounts books have been produced. The cheque has been issued in the month of November, 2005, according to the complainant, in respect of loan which was given few months prior to the cheque in question. However, in the deposition, the complainant has admitted that his economic condition was bad in or around the month of August, 2005 and he was liable to pay some outstanding loan to the Banks etc. He has further admitted that he obtained two loans by mortgaging his gold and one personal loan which he was liable to repay. It has also admitted that his total liabilities were worth Rs.1.5 lakhs in or around the month of August, 2005 and he was also facing recovery proceedings. These admissions clearly show that in the month of August, 2005 and the period around that time, the financial condition of the complainant was bad. It is clear that he did not possess sufficient money to satisfy his own loans, in such case it appears impossible that the complainant would have advanced an amount of Rs.7,23,000/- to the accused. 5. The complainant has relied on a transaction between him and the accused. The nature of transaction is that the complainant has taken six vehicles owned by the accused on some conditions. Prima facie the purchaser is always liable to pay something to the buyer and not the other way around. 5. The complainant has relied on a transaction between him and the accused. The nature of transaction is that the complainant has taken six vehicles owned by the accused on some conditions. Prima facie the purchaser is always liable to pay something to the buyer and not the other way around. In the present case, it is not stated by the accused that the complainant was liable to pay him some amount against the transaction of vehicles. As observed earlier, during the period the complainant is said to have advanced loan to the accused, the complainant himself was in financial difficulties. In such case the defence of the accused seems to be probable that as the complainant and he were on friendly terms, the complainant requested him to give a cheque only with a view to show the same to his (complainant’s) creditors. The complainant wanted to buy some time from his creditors and as it was not easy, the complainant requested the accused to provide the cheque in question to him only with a view to show the same to his creditors. Moreover, it is seen that though the signature of the accused appears on the cheque, all the other contents are typewritten and there is correction made in the name of the payee on the said cheque by using fluid. Looking to the evidence on record, I am of view that the learned Magistrate has rightly come to the conclusion that the cheque was not issued in respect of any legally enforceable debt or liability. 6. On perusal of the evidence, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 7. It is well settled that if the view of acquittal could have been reasonably arrived at then mere circumstance that the lower 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 SC 66 Khedu Mohton and Ors. Vs. State of Bihar and 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 . 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 SC 66 Khedu Mohton and Ors. Vs. State of Bihar and 1 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. 8. As observed above, the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected.