High Court
Facts
( 1 ) crap241.18IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 241 OF 2018Chandrala Motors a partnership firm..AppellantThrough its partner Girish Govind ShahapurkarAge. 49 years, Occ. Business,R/o. Plot No.288, N-1, Cidco,Aurangabad.VersusAyyub Kasam Shaikh..RespondentAge. Major, Occ. Business,R/o. A/p. Shingi, Tq. Gangapur,Aurangabad.Mr.Uday V. Khonde, Advocate for the appellant.Mr.Yogesh R. Shinde h/f. Mr. Rahul R. Karpe, Advocate for the respondent.CORAM: ABHAY S. WAGHWASE, J.RESERVED ON:16.01.2024PRONOUNCED ON:01.02.2024J U D G M E N T :-01.Feeling aggrieved by the judgment and order passed by thelearned Judicial Magistrate, First Class, (Court No.12) Aurangabad, in S.C.C.No.8269 of 2013 dated 18.09.2017, the original complainant has preferredthe instant appeal questioning the legality and maintainability of the saidjudgment and order. ( 2 ) crap241.1802.Present appellant instituted a proceeding under the provisions ofthe Negotiable Instruments Act against present respondent on the premisethat the complainant is a partnership firm and authorized sales and servicedealer of earthmoving machines/equipments. The respondent approachedthem for purchase of backhoe loader. He borrowed loan of Rs.16,00,000/-from Shriram Transport Finance Company by mortgaging his land. Accordingto the complainant, total price of the loader is Rs.20,50,169/-. The amount ofRs.24,500/- was to be paid by the customer towards insurance policy and assuch total amount of backhoe loader was Rs.20,74,669/-. Considering theloan amount and cash amount of Rs.2,24,500/- paid by way of cash by theaccused, the amount due towards accused/respondent was Rs. 2,50,000/-.The said liability was to be completed. The machinery was already deliveredand accepted by the respondent of which there is no dispute. Towardsrepayment of Rs.2,50,000/- initially two cheques were issued, but same weredishonoured and therefore third cheque of amount of Rs.2,50,000/- wasissued. However, when it was presented with the bank, it returneddishonoured and therefore after putting the accused/respondent to notice,S.C.C. bearing No.8269 of 2013 was instituted by the complainant. In the ( 3 ) crap241.18above complaint after issuance of process, the respondent/accused appearedand resisted the complaint and denied the entire case set up by thecomplainant. Both the parties adduced oral and documentary evidence.After appreciating the same, the learned JMFC reached to aconclusion that the complainant failed to prove that there was legallyenforceable debt. Moreover, the learned Trial Judge held that the accusedrebutted presumption available under the Negotiable Instruments Act andthereby vide above judgment dated 18.09.2017, acquitted the accused.Precisely said judgment is assailed by filing the instant appeal.03.Heard both the sides at length. After considering the submissionsadvanced, it appears that the judgment of the learned Trial Court isquestioned firstly on the ground of failure to appreciate oral and documentaryevidence; secondly the learned Trial Court erred in holding that there was nolegally enforceable debt; thirdly the cheques and signature were undisputedand therefore the case ought to have been accepted and fourthly the learnedTrial Court failed to consider and appreciate the undertakings given by theaccused. ( 4 ) crap241.18For all above reasons, the judgment is sought to be quashed andset aside.04.In answer to above, the learned Counsel for theaccused/respondent submits that there is no dispute that machinery/vehiclewas purchased by raising loan as well as contributing his own share and thatthe due amount was already paid. However, excess amount was demanded bythe complainant, even when there was nothing remaining at the end of theaccused and there was no legally enforceable debt. The learned Counselinvited attention of this Court to the depositions of PW-1 as well as PW-2 andwould submit that there is clear admission about receipt of amount andissuance of acknowledgment towards the same. Therefore, there was nolegally enforceable debt and therefore there was no question of issuing anycheque. That, learned Trial Court has correctly appreciated the evidenceadduced by the complainant. That, a false case is apparently set up andexcess amount was tried to be extracted. That, on the contrary, the accusedhas rebutted the presumption available under sections 118 and 139 of theNegotiable Instruments Act. The learned Trial Court has committed no error ( 5 ) crap241.18in acquitting the accused and he prays for dismissing the appeal for want ofmerit.05.On re-appreciation of evidence, here, there is no dispute that thecomplainant is a partnership firm. Further, there is no dispute about thetransaction of purchase of backhoe loader from the complainant, who is anauthorized sales and service dealer. Evidence of complainant shows that loanwas raised from Shriram Transport Finance Company to the tune ofRs.16,00,00/- and therefore, margin money turns out to be 4,50,169/-. Thecomplainant does not disown Exh.19, which is a delivery order issued by thesaid financier, reflecting price of the machinery as Rs.20,50,169/- only. Thecomplainant in cross has admitted receipt of Rs.4,50,000/- on 23.01.2010 andof Rs.169/- on 27.12.2011. Accused came with a case that he had paidRs.2,24,665/- towards the remaining dues regarding which there does notseem to be dispute at the end of complainant. Therefore, if accused has paidabove amount, then the balance should be Rs.2,25,504/- and not the amountclaimed by complainant to the tune of Rs.2,50,000/-. In fact, amount ofRs.24,496/- apparently appears to be excess than what is liable.
Legal Reasoning
( 6 ) crap241.18It is settled law that only legally enforceable debts are required tobe demanded and paid. There is no explanation from the complainant in hisevidence as to how amount of Rs.2,50,000/- which is reflected on theinstrument was remaining to be paid by accused. 06.In the light of above discussion and on re-appreciation, it isemerging that complainant failed to establish that the amount reflected on thecheque was the legally enforceable debt and that it had remained unpaid.Apparently for excess amount, for which there is no clarification, instrumentseems to have been drawn even when there was no legally enforceable debt.Hence, though initial presumption on the strength of transaction and chequecan be drawn, unless legally enforceable liability is established, offence cannotbe said to be squarely brought home. When there is apparently a mismatchbetween liability by way of dues, and the amount reflected on the cheque inquestion, case cannot be said to be established by complainant.07.Having gone through the judgment under challenge, there seemsto be correct appreciation. The findings and conclusion being in consonancewith the evidence on record, judgment cannot be said to be perverse, illegal or ( 7 ) crap241.18not maintainable. No case being made out on merits in appeal, I proceed topass the following order:O R D E R (i) The criminal appeal is dismissed.[ABHAY S. WAGHWASE, J.]snk/2024/JAN24/crap241.18