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2018 DIGILAW 1320 (BOM)

Om Crushing Company v. State Of Maharashtra

2018-06-06

ROHIT B.DEO

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JUDGMENT Rohit B. Deo, J. - The appellant - who is the original complainant is aggrieved by the judgment and order dated 13.09.2006 rendered by the Judicial Magistrate First Class, Nagpur in Summary Criminal Complaint Case 1971/2002, by and under which, the respondents 2 and 3 are acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (''Act'' for short). 2. Heard Shri S.L. Kotwal, the learned counsel for the appellant, Shri N.H. Joshi, the learned Additional Public Prosecutor for respondent 1/State and Shri M.D. Bhambhwani, the learned counsel for respondents 2 and 3. 3. The gist of the complaint is that the accused purchased Bajeri (gravel), Churi, Gitti (grit) and Murum (hard soil) from the complainant on credit. The outstanding against the said credit purchase was Rs. 4,02,857.65 as on 17.04.2002. The credit sale was subject to the condition that if accused failed to make the payment within the prescribed period interest shall be charged. The assertion in the complaint is that the account maintained in regular course of business shows outstanding balance of Rs. 4,38,780/against the accused which includes interest. The further assertion in the complaint is that the accused issued two cheques dated 20.08.2002 and 20.09.2002 for Rs. 2,17,260/and Rs. 2,21,520/respectively to discharge the said liability. The complainant presented cheque for Rs. 2,21,520/for payment. The cheque was dishonoured and the statutory notice dated 08.10.2002 was issued to the accused who did not claim the notice leading to the complaint. 4. The proprietor of the complainant firm Shri Anil Babhale deposed on the lines of the averments in the complaint. The said witness proved bills dated 19.12.2001, 05.01.2002, 18.01.2002, 04.02.2002, 16.02.2002, 18.03.2002, 31.03.2002, 18.04.2002 and 04.05.2002 (Exh.30 to Exh.38) and claimed that the disputed cheque was issued to discharge the liability covered by the said bills. The accused has stepped into the witness box and the defence appears to be that the accused purchased goods as per bill Exh.48 and bill Exh.51 and made the payment covered by the two bills by two cheques and a money order. The defence of the accused is that he had given two blank cheques as a security and although he did pay an amount of Rs. 3,03,745/towards bills Exh.48 and Exh.51 the blank cheques were not returned. The defence of the accused is that he had given two blank cheques as a security and although he did pay an amount of Rs. 3,03,745/towards bills Exh.48 and Exh.51 the blank cheques were not returned. The defence of the accused is that he demanded the return of the blank cheques by issuing letters Exh.61 to 64, but in vain. 5. Perusal of letters Exhibits 61 to 64 which are letters dated 17.12.2001, 27.02.2002, 25.04.2002 and 17.09.2002 would reveal that the accused stated that he had paid the amount covered by bills 108 and 116, by two cheques dated 10.12.2001 and 17.12.2001 and one pay order. The said letters mention that two cheques including the disputed in Exh.39 were given as a security and that the said cheques be returned. In the crossexamination C.W.1 admits that the said letters bears a signature which appears to be of C.W.1. 6. The evidence on record would suggest that it is not in dispute that corrected bills Exh.48 for Rs. 2,03,748/and corrected bill Exh.51 for Rs. 78,528.30 were issued by the complainant to the accused. The learned Magistrate, on a holistic appreciation of evidence on record, has held that the amount covered by the two corrected bill Exh.48 and Exh.51 was paid by the accused to the complainant by two cheques and one pay order. Having considered the reasons recorded by the learned Magistrate, particularly in paragraphs 17, 18 and 19 of the judgment and order impugned, I do not see any infirmity in the finding recorded by the learned Magistrate. 7. The submission of Shri Kotwal, the learned counsel for the appellant is that the accused did not rebut the statutory presumption under Section 139 of the Act. The submission is since the issuance of the disputed cheque is not disputed, the statutory presumption is activated. Shri Kotwal is right in the submission that the statutory presumption is activated. However, the statutory presumption is duly rebutted by the accused. The evidence on record irrefutably shows that the payment of the two corrected bills Exh.48 and Exh.51 is made by the accused. The four letters addressed by the accused to the complainant, in which it is recorded that the cheques given as a security are not returned by the complainant, more than amply corroborate the defence. C.W.1 admits that the signature on the copy of the letters appears to be his signature. The four letters addressed by the accused to the complainant, in which it is recorded that the cheques given as a security are not returned by the complainant, more than amply corroborate the defence. C.W.1 admits that the signature on the copy of the letters appears to be his signature. The burden on the accused to rebut the presumption is not to prove the defence beyond reasonable doubt. It is sufficient if the accused proves by cogent evidence that the case of the complainant is in every probability doubtful. The accused has more than amply rebutted the presumption by proving that the amount covered by the corrected bill is paid and that he addressed several letters from time to time demanding the return of the disputed cheques issued as a security. 8. The view taken by the Magistrate is a possible view and at any rate is not perverse. I do not see any compelling reason to interfere with the judgment of acquittal. 9. The appeal is sans merit and is rejected.