Abhay S. Waghwase JUDGMENT
Abhay S. Waghwase, J.
1. The original complainant, who instituted proceeding under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act), is dissatisfied by the judgment and order of acquittal passed by the learned 3rd Judicial Magistrate, First Class, Latur in S.T.C.C. No.3288 of 1997 dated 04.08.2004.
2. Present appellant filed above proceedings on the premise that he and accused are agriculturists. The accused purchased 60 tons of sugarcane buds worth Rs.46,000/- and accused agreed to pay the price of buds within a month. Accused failed to repay, but only on repeated demand he issued cheque drawn on Latur District Co-operative Bank, Branch Kapad Bazar. On its presentation, the cheque returned dishonoured and therefore the accused was put to legal notice. In spite of receipt of same, the cheque amount was not paid and therefore the above proceedings were instituted.
3. JMFC conducted trial vide S.T.C.C. No.3288 of 1997 and on appreciating the oral and documentary evidence, reached to a finding that complainant failed to make out a case beyond reasonable doubt and therebeing no legally enforceable debt, learned trial Judge acquitted the accused vide judgment and order dated 04.08.2004.
Precisely above order of acquittal is questioned by way of instant appeal.
SUBMISSIONS
On behalf of the appellant/complainant :
4. Learned Counsel for the appellant would point out that complainant and accused are well acquainted, they both being agriculturists. That, there was transaction of purchase of sugarcane buds and towards price of the same, cheque was issued. It is pointed out that issuance of cheque and signature over it was not disputed. Therefore, there was strong presumption available under law i.e. under Sections 118 and 139 of the N. I. Act.
5. Learned counsel for the appellant further submitted that, accused failed to rebut the said presumption. That, there was clear legally enforceable debt in the backdrop of above transaction. However, learned trial court failed to consider and appreciate the case of the complainant and according to him,learned trial court arrived to an erroneous conclusion in spite of ingredients for attracting Section 138 of the N.I. Act being patently available. Hence, he seeks indulgence at the hands of this Court in setting aside the judgment passed of the learned trial Judge by allowing the appeal.
On behalf of the respondent/accused :
6. In answer to above, learned counsel for the respondent/accused pointed out that the complainant utterly failed to establish legally enforceable debt or issuance of any cheque towards the same. In that backdrop, he pointed out that in fact the cheque which was handed over by his father in a distinct transaction of mortgage of land, was misused. There was no transaction of purchase of any sugarcane buds and therefore, according to him, no error whatsoever is committed by the learned trial court in acquitting the accused.
SUM AND SUBSTANCE OF EVIDENCE IN TRIAL COURT
7. It appears that the complainant has examined himself as well as a bank official in order to prove his case. The sum and substance of their evidence is as under:
P.W.1 Tukaram at Exhibit 60 testified that he and accused were having lands at Jewali. According to him, accused took 60 tons of sugarcane buds worth Rs.46,000/-. Towards payment of the same, he issued cheque dated 16.04.1997, but on its presentation, it was returned dishonoured and therefore, as required by law, legal notice was dispatched by way of both modes, i.e. R.P.A.D. as well as U.P.C. The postal acknowledgments were placed on r........