SANJAY MOHANLAL GADIYA Vs. VINAYA RAMESH PAIGUDE

JUDGEMENT

(1.) HEARD learned counsel for the applicant in support of this application for special leave to prefer an appeal. The applicant is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The complaint has resulted in acquittal.

(2.) THE case of the applicant is that he is carrying on business of builder and contractor. According to him the accused (first respondent) is his customer and he constructed a house for the accused in the year 2000 and in the same house the accused is now residing. According to the applicant, the accused was a reliable lady and therefore, he gave credit of Rs.2.00 lakhs to the accused and the said amount is yet to be received by the applicant. The accused promised to pay the said amount to the applicant from time to time. When the applicant contacted her in November 2002 she issued a cheque in the sum of Rs.2.00 lakhs dated 1st December 2002. The said cheque has been dishonoured and, therefore, the complaint has been filed. The learned counsel for the applicant has taken me through the notes of evidence and other material documents on record. He pointed out the defence taken by the first respondent-accused in her examination in chief. He pointed out that there was a transaction of sale of immovable property between the father of the applicant and the first respondent. Her defence was that a cheque in the sum of Rs.5,000/- was issued by her to the father of the applicant in connection with the said transaction. Her case is that the said cheque was a blank cheque. Her defence is that she paid cash amount to the father of the applicant and, therefore, she claimed back the said cheque which was not returned. He submitted that the said case is falsified by the sale deed which is on record. He submitted that the case of the accused that she got the house constructed through another contractor has to be disbelieved going by the version of the contractor which was examined by the accused. He pointed out that the said contractor came out with the case that he completed the construction in 1996-97 and the amount was paid by the accused and her husband in the year 2003. He pointed out that the said contractor is a close relative of the accused. He therefore submitted that as the accused came out with the defences which turned out to be completely false, the presumption under section 139 of the said Act of 1881 does not stand rebutted. He submitted that as the presumption is not rebutted, the order of acquittal passed by the learned Trial Judge is totally perverse.

(3.) THE view taken by the learned Judge that the guilt of the accused is not established is certainly a possible view which could have been taken on the basis of material on record. Even assuming that another view could have been taken, that is not a ground to interfere in an appeal against acquittal. It cannot be said that the view taken by the learned Judge was an impossible view or the same could not have been taken. The presumption of innocence is further strengthened by order of acquittal. Even assuming that two views are possible to be taken, the one in favour of the accused has to be preferred.