TMI Blog2013 (1) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... y the said order of acquittal has filed the present appeal after obtaining leave of this court. The appellant shall, hereinafter, be referred to as the complainant and respondent No. 1 as the accused , for the sake of convenience and clarity. 2. The appeal was taken up for final hearing expeditiously at the instance of the complainant He being a senior citizen, insisted on an expeditious disposal of the appeal. 3. I have heard Mr. Sachin Dhakephalkar, the learned counsel for the appellant-complainant. Nobody appears for respondent No. 1-accused. No submissions have been made by the learned APP on behalf of the State of Maharashtra. 4. I have gone through the entire evidence adduced during the trial. I have also gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on 8/8/2001 with the understanding that it was to be repaid within a period of three months and that a demand promissory note was executed by the accused on 8/8/2001. The case of the complainant is that it is at that time that the accused gave a post dated cheque dated as 8/11/2001 for the purpose of repaying the loan amount. 8. The complainant gave evidence consistently with his case. In the cross-examination, he said that he knew the accused for 12 to 13 years. It was suggested to him that an advertisement had been given by him in local newspaper to provide loans to bank employees to which he replied 'that he could not say about it'. It was suggested to the complainant that he was charging a penalty of Rs. 100/- per day for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of his having paid the amount to the complainant. When the accused said that he had his bank-passbook to prove that, he was, apparently challenged to produce the passbook in that regard, which was produced by the accused on the next date. The accused also produced his bank statements which were tendered in evidence, marked and exhibited. There were entries showing some payments made by the accused to the complainant and these payments amounted to Rs. 25,300/-. 12. The learned magistrate considered the evidence adduced by the parties and noticed certain relevant aspects of the matter. He observed that though it was the case of the complainant that an amount of Rs. 98,000/- was given by him to the accused as a friendly loan, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The magistrate observed that it was not the case of the complainant that he was entitled to recover an amount more than Rs. 98,000/-. The magistrate observed that there was no explanation given by the complainant why he had received the amount in the year 1999-2000 and 2001 from the accused. The magistrate concluded that the facts averred by the complainant were selective and that he had not disclosed all the facts. That, the complainant had failed to explain the payments made to him by the accused was held against the complainant by the magistrate who came to the conclusion that going by the case of the complainant as put forth and considering the receipt of an amount of Rs. 25,300/- by the complainant, it was not possible to hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions have gone unexplained from the complainant's side, the inference that the real transaction between the complainant and the accused had not taken place on 8/8/2001 but had taken place before that, as claimed by the accused, may legitimately be drawn. 18. The crux of the matter is that, not only the complainant did not initially disclose the transactions between him and the accused, which had taken place prior to 8/8/2001, and rather challenged the accused when he claimed existence of such transactions, but also was unable to explain the transactions even after the accused had brought them on record. The lack of any explanation even after the transactions were brought on record is suspicious, even if that there was a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
