PRAVINKUMAR VITHALDAS VED Vs. DR. PARMANAND SHITALPRASAD PANDEY

JUDGEMENT

(1.) Heard learned Advocate for the Appellant-Complainant and learned Advocate for the Respondent-Accused. Though Respondent-Accused was convicted by the Court of Metropolitan Magistrate, Court No.33, Ballard Pier, Bombay for the offence punishable under Sec. 138 of the Negotiable Instruments Act, he was acquitted by City Civil Court. That is how present Appeal is filed by the Original Complainant.

(2.) The issue involved in this Appeal is whether the City Civil Court is justified in setting aside the conviction and whether it was justified in holding that the respondent has rebutted the presumption and hence there was no legally recoverable debt/liability. It is true that there is always a presumption of innocence in a criminal trial. This presumption of innocence is reinforced when the Accused is acquitted. However in a prosecution under Sec. 138 Of the Negotiable Instruments Act, there is burden on both the sides and it is not like any other criminal trial. So normal principle of least interference in the judgment of acquittal is not applied with full force in such acquittal. However, in this case, Accused was convicted but acquitted by the City Civil Court. So, we need to decide whether City Civil Court was justified in setting aside the findings by the trial Court in favour of the Complainant.

(3.) The Complainant advanced money to the tune of Rs.6.00 lakhs to the Accused through his brother in law Dinesh Kapadia. He was a chartered accountant for the Accused. Accused was working as lecturer in Mitibai College and he was conducting tuition class in the name of M.P. tuition classes. The Accused executed a bill of exchange on 1/2/1997 in favour of the Complainant and his wife. He has agreed to pay interest at the rate of 2.75 per month. Through the intervention of said Kapadia, towards the principal and interest, accused issued a cheque for Rs.10,29,000.00 in favour of the Complainant. On presenting, it got dishonoured for various reasons. Mandatory notice was issued and it was also replied too. Ultimately complaint was filed. Both the parties adduced oral and documentary evidence.