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2018 DIGILAW 755 (BOM)

Sunil v. Arun

2018-03-14

ROHIT B.DEO

body2018
JUDGMENT Rohit B. Deo, J. (Oral) - The appellant is challenging the judgment and order dated rendered by the learned IInd Judicial Magistrate First Class, Yavatmal in Summary Criminal Case 1236/2003, by and under which respondent 1 is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short). 2. Since the appellant has chosen not to engage a counsel, this Court requested Shri N.H. Joshi, learned Advocate to assist the Court. With the fair and able assistance of the learned Amicus Curiae, I have scrutinized the record and the reasons recorded by the learned Magistrate in the judgment and order impugned. 3. The gist of the complaint is that the accused used to purchase from the complainant goods on credit. The complainant is proprietor of a grocery shop "Ahuja Bandhu Kirana". In the month of April 2002, the accused purchased goods worth Rs. 15,753/and towards part payment issued cheque for Rs. 5,000/datedwhich was dishonoured due to insufficient funds in the account of the accused. Despite receiving the statutory notice the accused did not comply and hence, the complaint. 4. The defence of the accused during trial and the statement recorded under section 313 of the Criminal Procedure Code, 1973 is that on receipt of the statutory notice dated 03.03.2003 he did draw a pay order dated 17.3.2003, which, however, was not accepted by the complainant. At the stage of arguments, the accused placed on record praecipe Exhibit 15 and again expressed willingness to tender the amount of Rs. 5,000/to the complainant. 5. The learned Magistrate has taken note of the admission of the complainant that the accused did draw Exhibit 28 for Rs. 5,000/. However, the complainant then denies that the accused came to him with the pay order dated 17.3.2003. 6. The leaned Amicus Curiae invites my attention to the evidence of Shri Mahindrakumar Kabra, Branch Manager of Bank of Maharashtra, Yavatmal, who is examined on behalf of the accused. He has proved the pay order for Rs. 5,000/datedand that the said pay order was returned by the accused to the bank on 04.6.2003 for cancellation. 7. The learned Magistrate has recorded a finding of fact that upon receipt of statutory notice Exhibit 31 the accused did take out pay order for the amount covered by the cheque, which was subsequently cancelled. 5,000/datedand that the said pay order was returned by the accused to the bank on 04.6.2003 for cancellation. 7. The learned Magistrate has recorded a finding of fact that upon receipt of statutory notice Exhibit 31 the accused did take out pay order for the amount covered by the cheque, which was subsequently cancelled. The learned Magistrate has further noted that even before the Court a praecipe was filed expressing the willingness of the accused to pay the amount. 8. On a holistic appreciation of evidence on record, the learned Magistrate has recorded a finding that the accused has probabilised the defence that he was ready to make the payment and the complainant did not accept the same. 9. The view taken by the learned Magistrate is a possible view and is not perverse. No compelling case is demonstrated for this Court to interfere in the judgment and order of acquittal. 10. The appeal is sans merit and is rejected.