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2014 Supreme(Bom) 2093
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
U. V. RAKRE, J.
Shri Gajanan Lobaji Kitturkar – Appellant
Vs.
Smt. Sumati S. Bhandari & Amr. – Respondent
Criminal Appeal No.19 of 2012.
Decided On : 10th November, 2014.
Advocate Appeared:
Mr. J.J. MULGAONKAR.Adv. far the Appellant.
Mr. G. TELES. Adv. far Respondent no.1.
Ms. M. PINTO. Addl. P.P. for Respondent no.2.
Headnote:NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138 and 139 Acquittal from charge of dishonour of cheque. Since existence of legally enforceable debt was not proved and accused had rebutted presumption available under Section 139 of Act hence acquittal of accused justified. It is pertinent to note that neither in the complaint nor in the affidavit-in-evidence the complainant stated that the accused had paid the amount of Rs. 1,72,000/- and, therefore, the balance amount was Rs. 2,67,424/-. It is true that in the cross-examination, a suggestion was put to AW 1 that the accused had paid to him a sum of Rs. 1,25,000/- on 2.6.2010 in front of Federal Bank, Panaji in the presence of one Ganesh Rao. However, a perusal of the cross-examination reveals that this sum of Rs. 1,25,000/- has nothing to do with the alleged amount of Rs. 4,39,424/-. A specific suggestion has been put to AW 1 that his statement that the said amount of Rs. 1,25,000/- was paid to AW 1 by the accused out of Rs. 4,39,424/- is a false statement. In his cross-examination, AW 1 has stated that the accused had paid some amount to him and balance amount was Rs. 2,67,424/-. If really, the accused had paid Rs. 1,25,000/- towards the part payment of the amount of Rs. 4,39,424/-, then, the balance would not be Rs. 2,67,424/-, but would be Rs. 3,14,424/-.
The finding of the trial Court that the accused rebutted the presumption available under the N.I. Act is also not erroneous. No glaring error has been pointed out by the counsel for the complainant in the impugned judgment and order. The impugned judgment cannot be termed as arbitrary or perverse. It is well-settled that even if two views are possible out of which one is the view taken by the trial Court which is a possible view, the appellate Court cannot interfere with the same and cannot substitute the same by its own view merely because that is also a probable view. The point for determination, therefore, gets answered in the affirmative.
Heard Mr. Mulgoankar, learned Counsel appearing on behalf of the appellant. Mr. Teles, learned Counsel appearing on behalf of the respondent no. 1 and Mrs. Pinto, learned Additional Public Prosecutor appearing on behalf of the respondent no. 2.
2. This appeal is directed against the judgment and order dated 31/10/2011 passed by the learned Judicial Magistrate, First Class, Panaji, Goa (trial Court, for short) in Criminal Case No. OA NIA 424/2010/C.
3. The appellant was the complainant and the respondent no. 1 was the accused in the said case. Parties shall, hereinafter, be referred to as per their status in the said Criminal Case.
4. The complainant had filed the complaint under Section 138 of the Negotiable Instruments Act. 1881 (N.1. Act. for short) which gave rise to the said Criminal Case No.
OA NIA 424/2010/C.
5. Case of the complainant, in short, was as follows:
The complainant and the accused were working for New India Assurance Company Limited. The accused needed financial assistance as she was in the process of constructing her residential house and hence, requested the complainant, somewhere in the month of September, 2009, to advance money to her and assured that she will repay the same within a period of six months. The complainant believed the accused and, from time to time, arranged for money and paid the same to the accused to pay her bills and for required construction material. The total amount of Rs. 4,39,424/- was received by the accused from the complainant in various instalments roughly between 05/09/2009 and 10/06/2010. Towards the full and final settlement/payment of the total amount payable by the accused to the complainant, the accused issued to the complainant a cheque bearing no. 299420 dated 31/08/20 I 0 drawn on the Corporation Bank, Panaji Branch for a sum ofRs.2,67,424/-. The said cheque, when presented to the banker of the complainant, was returned dishonoured with endorsement "funds insufficient". The complainant addressed a demand notice to the accused through his Advocate as per law. The notice was received by the accused, who replied to the same through her Advocate thereby denying the liability and alleging that the complainant had himself approached her for financial assistance and in order to help him, she had issued the said cheque.
6. The accused pleaded not guilty to the substance of accusation explained to her. The complainant examined himself as AWI and produced the cheque, the pay in slip, cheque return memo, postal slip, A.D. Card, the legal notice and the reply of the accused. The statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the case of the complainant and stated that the complainant had approached the accused for financial assistance and, therefore, the accused had issued the cheque bearing No. 299420 for Rs.2, 67,424/- to the complainant, but ultimately the accused could not make arrangement for the money and, therefore, she had requested the complainant not to deposit the said cheque and to give it back to her, but the accused misused the same. The accused did not examine any witness.
7. Upon consideration of the entire evidence on record, the learned trial Court found that the complainant failed to prove that there was any legally enforceable liability. The trial Court further held that the complainant failed to prove that he had advanced the said sum of Rs4,39,424/-. It held that the accused had rebutted the presumption available under the Act. The accused, therefore, came to be acquitted. The complainant is aggrieved by the acquittal and has filed the present appeal.
8. Mr. Mulgaonkar, learned Counsel for the complainant submitted that no lump sum payment was made by the complainant to the accused and that the amounts were paid in various instalments and in such circumstances, Section 269-SS of the Income Tax Act was not applicable and, therefore, the learned trial Court erred in applying the said Section and disbelieving the case
