VIJAYKUMAR GULABCHAND BALDAVA Vs. PRAKASH AMBADAS KULKARNI

JUDGEMENT

(1.) Heard Mr. P.R. Katneshwarkar, Advocate h/f. Mr. Nikhil Jaju, Advocate for the applicant, non-applicant No.1 in person and Mr. A.V. Deshmukh, learned A.P.P. for non-applicant No.2/State. The applicant/accused has challenged the judgment passed by the Sessions Court by which the appeal filed by the accused is dismissed and the judgment passed by the learned Magistrate convicting the accused for the offence punishable under section 138 of the Negotiable Instruments Act is maintained.

(2.) The subordinate Courts have concurrently accepted the claim of the non-applicant No.1/complainant that the accused had given cheque for Rs.5 lakhs, that the cheque was dishonoured, that inspite of notice the accused had not paid the amount and after examining that all the pre-requisites of Section 138 of the Negotiable Instruments Act have been complied with, the subordinate Courts have concluded that the accused is liable for convictioin for the offence punishable under section 138 of the Negotiable Instruments Act.

(3.) The learned Advocate for the accused has submitted that the findings recorded by the subordinate Courts that the accused is liable for conviction for the offence punishable under section 138 of the Negotiable Instruments Act are not sustainable as the subordinate Courts have not appreciated the evidence on record and the fact that the complainant has failed to establish that the complainant had paid the amount of Rs.5 lakhs to the accused and the cheque in question was given to satisfy the legal liability. To support the submission, the learned Advocate has referred to the cross- examination of the complainant, the cross-examination of Dashrath (P.W.3) and the cross-examination of Vasant (P.W.4) - employee of the bank. Relying on the cross- examination of the complainant and above witnesses it is argued that the complainant has failed to prove beyond doubt that the entries on the cheque are in the handwriting of the accused. It is urged that the handwriting on the pay slip along with which the cheque was deposited and the hand-writing on the cheque is same and in the cross-examination Vasant (P.W.4) has stated that the pay-slip along with which the cheque was deposited is filled up by the complainant in his hand- writing and therefore it is clear that the hand-writing on the cheque is of the complainant. Referring to the cross-examination of Vijay (P.W.5) who was working as Tahsildar at Shevgaon, the learned Advocate has submitted that the claim of the complainant that he was having Rs.5 lakhs in July, 2005, when the amount said to have been given to the accused is falsified. It is argued that the Sessions Court has committed error by not accepting the case of the accused on the ground that the accused has not led any evidence to substantiate his defence. It is submitted that the accused is not required to lead any evidence to substantiate his defence and the accused can substantiate his defence on the basis of the material on record and the admissions brought in the cross- examination of the witnesses examined on behalf of the complainant. In support of the submissions, reliance is placed on the following judgments :-