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2008 SCC OnLine Bom 1597 : (2009) 4 BC 487 : (2008) 6 AIR Bom R (NOC
997) 331 : (2010) 1 ALD (Cri) (NOC 36) 24
In the High Court of Bombay
(BEFORE V.K. TAHILRAMANI, J.)
Laxman Bhaguji Kawade … Applicant;
Versus
Satyabhama Shivlata Chavan & Ors. … Respondents.
Cri. Appln. No. 436 of 2007
Decided on April 21, 2008
The Judgment of the Court was delivered by
V.K. TAHILRAMANI, J.:— The applicant-original complainant has filed this
application for leave to file appeal against the judgment and order dated 10th
November, 2006 passed by the learned J.M.F.C. Pimpri in C.C. No. 2830 of 2003. By
the said judgment and order, the learned Magistrate acquitted the respondent Nos. 1
and 2-original accused Nos. 1 and 2 of the offence under Section of 138 of N.I. Act.
2. Heard the learned Advocate for the applicant-orig. complainant and the
Page: 488
learned APP for the State. Perused the judgment and order of the learned Magistrate
as well as the evidence in the present case which has been annexed.
3. The amount involved in the present case is Rs. 1 lac. Two cheques were issued
for Rs. 50,000/- each. The cheque at Exh. 18 was issued by accused No. 2 and the
cheque at Exh. 26 was issued by accused No. 1. The cheque at Exh. 18 was drawn on
Seva Vikas Co-operative Bank Limited and cheque at Exh. 26 was drawn on Shree
Sadguru Jangli Maharaj Bank Limited, Theregaon Branch. Both cheques were drawn on
different Banks by different accused and in individual capacity. Therefore on dishonour
of each of these cheques there is different cause of action for offence punishable under
Section 138 of Negotiable Instruments Act. As per Section 218 of Cr.P.C. for every
distinct offence of which any person is accused there shall be a separate charge and
every such charge shall be tried separately. In this case on dishonour of cheque at Exh
18 and Exh. 26 there are distinct offences regarding accused Nos. 1 and 2 for which it
was mandatory to try these two accused persons separately as per Section 218 of
Cr.P.C. As per Section 223 of Cr.P.C. persons accused of the same offence committed
in the course of the same transaction may be charged and tried together. However, in
the present case the offence committed by accused No. 1 for dishonour of cheque at
Exh. 26 and the offence committed by accused No. 2 for dishonour of cheque at Exh.
18 are distinct offences and are not same offences. In complaint at Exh. 1, the
complainant had mentioned two different cause of action against accused Nos. 1 and 2
on dishonour of their respective cheques. This case would also not be covered by
Sections 219 and 220 of Cr.P.C.
4. The learned Magistrate has come to conclusion that there was no legal liability.
After perusal of the evidence, it is seen that the view taken by the learned Magistrate
is a reasonable and possible view. Moreover, it is seen that the evidence of the
complainant (PW-1) and the evidence of his witness PW-2 does not corroborate each
other. PW-1 deposed that he gave an amount of Rs. 1,20,000/- to the accused and PW
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-2 deposed that the amount of Rs. 1,00,000/- was paid to the accused. Another
material contradiction between PW-1 and PW-2 is that the complainant (PW-1)
deposed that the said amount was repayable within 15 days and PW-2 deposed that
the amount was repayable after four years. He further deposed that after four years
accused failed to repay the amount. It is pertinent to note that the date of payment of
amount is 1.4.2003 and the period of four years was not completed, therefore, the
evidence of PW-2 regarding non payment of amount by the accused after four years is
not believable and trustworthy. PW-1 admitted in his cross-examination that PW-2 is
wrongly deposing that the amount was repayable within four years and again he
stated that he has correctly deposed it. It is clear from the evidence of PW-1 that he
did not stick up with one version. He is changing his deposition. Therefore, his
evidence is not reliable and trustworthy.
5. It is pertinent to note that it is the case of the complainant that promissory note
was executed by the accused at the time of payment of amount. However, the said
promissory note is not produced as documentary evidence before the Court.
Page: 489
The Xerox copy of the said promissory note is produced on record but the original is
not produced. No explanation is given by the complainant why the original is not
produced before the Court. The promissory note was executed by the accused in
favour of the complainant and in the ordinary course of business, it is expected to be
in possession of the complainant.
6. In the present case, the offences charged against accused Nos. 1 and 2 are not
in one series of act, they cannot constitute part of the same transaction. On the
contrary the offences give rise to two different cause of action and hence the
complainant was bound to file two separate complaints for dishonour of cheques
against each of the accused. The provisions of Section 218 of Cr.P.C. provides for
separate trial. Hence, the learned Magistrate rightly observed that accused Nos. 1 and
2 could not be tried jointly in one case.
7. Looking to the evidence on record, I am of the opinion that the view taken by the
learned Magistrate is a reasonable and possible view.
8. It is well settled that if the view of acquittal could have been reasonably arrived
at then mere circumstance that the lower Court would have taken a different view,
would be no ground to interfere. In this connection, useful reference can be made to a
decision of the Supreme Court in the case C. Anthony v. K.G. Raghavan Nair, IV
(2006) BC 295 (SC) : VI (2002) SLT 272 : (2003) 1 SCC 1. In the case of C. Anthony,
the Supreme Court has observed that unless the findings of the Trial Court are
perverse or contrary to the material on record, the High Court cannot in Appeal
substitute its findings, merely because another contrary opinion was possible on the
basis of material on record. As stated earlier, the view taken by the learned Magistrate
is a reasonable and possible view. Hence, no interference is called for. Application for
leave to appeal is rejected.
9. Application dismissed.
———
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