This is an appeal against acquittal.

2. Heard learned Advocate Mr. A.V. Gawande for the appellant, learned Additional Public Prosecutor Mr. V. A. Thakre for respondent No.1 and learned Advocate Mr. V. M. Deshpande for respondent No.2.

3. This Court had heard this case from time to time. After completing the hearing on merits, on 1st September, 2008, this Court gave an indication to the respondent No.2 that the eventuality of hearing the accused on sentence is about to arise and, therefore, directed the presence of accused on 8th September, 2008. Accordingly, the accused is present.

Facts:

4. Though the accused has denied any liability and has averred that cheque was given to complainant, certain matters are either admitted or proved, namely:

(a) Complainant had kept a sum of Rs. 25,000-00 as a "Dharohar" with the respondent No.2.

(b) Admittedly, the respondent No.2 passed a "Dharohar Chiththi ".

(c) (i) various payments made by the accused to the complainant, (ii) service of notice, (iii) legality thereof etc., and (iv) payment by the accused to the complainant of Rs. 27,400-00 between March, 1997 till 2002,

5. The document of "Dharohar" is at Exh.22. It consists of rate of interest, which is described as follows: "Rate of Interest - 1.6."

6. Apparently, it is ambiguous as to what is the periodicity of agreed rate of interest. However, parties have admitted that it is "1.6 per cent per month." 7. It is also admitted that the amount paid by the accused matches with the rate of interest payable at the interval of every four months, as he has paid periodically an amount of Rs. 1600-00 at the end of every four months on most occasions.

8. Accused has attempted to rely upon an admission of the complainant that as the amount was given on "Dharohar", it did not bear interest. Reliance is placed on complainant's admission in the cross-examination. The accused, however, admits in his examination that he has paid towards interest, and also admits execution and contents of Exh.22, the "Dharohar Chiththi ".

9. After hearing the parties, in paragraph No. 15, learned trial Court has recorded a finding, which reads as follows:-

"15. Thus, considering the evidence adduced by the accused, in my opinion the defence raised by accused is probable one. It can be said that on 3-4-2002 there was not debt in existence against the accused and therefore, it can be said that, the cheque in question EX.23 was not issued in discharge of legally enforceable debt. Hence, I answer point No. 1 in the negative."

(quoted from pages 77 and 78 of the paper-book of Criminal Appeal.)

10. While the learned Trial Judge accepted the fact that the "Dharohar Chiththi" consists of a promise to pay interest at the rate of 1.6 at monthly rate, yet, the trial Court has impliedly held that the amount of Rs. 27,400-00 received by the complainant was towards principal amount. The findings recorded in para 15 are seen to be totally contrary to the facts on record which are duly proved, and are emerging from admitted documents.

11. The accused is a trader and he is supposed to have maintained accounts. He had not brought forward documents in his possession and control from which he could have at least made an attempt to demonstrate as to how the amount paid every four months was accounted for by him. Had the payment been made towards satisfaction of part of principal amount, there would have been a corresponding reflection in the books, in the account of the accused and it would have been shown that the amount payable under "Dharohar" was wiped out upon completion of refund of Rs. 25,000,00/-. The accused has, however, failed to bring on record such best evidence in his control and possession.

12. Moreover, what trial Court has done is recording rival submissions in para Nos. 13 and 14 and dictum is recorded in para 15, but reasons thereto are nowhere seen.

13. This Court, therefore, holds that the findings contained in para No. 15 quoted in para No.9 above are not just based