apeal.238.2001 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 238 OF 2001
Arun S/o Janrao Bhure,
Aged about 32 years,Occ-Business,
R/o Raut Wadi,Akola,
Police Station and Tq.Akola,
District-Akola. ..... APPELLANT
...V E R S U S...
1. Manoj S/o Rameshlal Bajaj,
Aged about 39 years,Occ-Business,
C/o R.S.Garments, Pakki Kholi,
Sindhi Camp,Akola,
P.S. and Tq.Akola,District-Akola.
2. State of Maharashtra,
Through Police Station Officer,
Police Station Civil Lines,Akola,
Tq. And District-Akola. ...RESPONDENTS
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Shri C.A.Joshi, Advocate for appellant.
Shri N.B.Jawade for respondent no.2.
None for respondent no.1.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 6,2017 ORAL JUDGMENT The present appeal is directed against the judgment and order of acquittal passed by learned 8 th Joint Judicial Magistrate First Class, Akola dated 07/03/2001 in Summary ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 05:08:30 ::: apeal.238.2001 2 Criminal Case No.23850/1998 by which the Court below acquitted respondent no.1 from the offence punishable under Section 138 of Negotiable Instruments Act.
Heard Shri C.A.Joshi, learned counsel for the appellant and Shri N.B.Jawade,learned A.P.P. for respondent no.2. None appeared for respondent no.1.
2. A complaint was filed against respondent no.1 that cheque (Exh.29) for Rs. 10,000/- was issued by respondent no.1 to the appellant dated 27/3/1998 of Akola Urban Co-operative Bank Limited,Akola bearing cheque no.019576 in discharge of his legal liability which was dishonoured by his bank for the reason " funds insufficient". After the issuance of statutory notice the amount was not paid and therefore the complaint was lodged.
3. Complainant entered into witness box. He examined his one witness Ravindra S/o Kisanrao Gotmare
4. From the evidence, as it is brought on record that on 16/5/1997 the respondent no.1 executed an agreement (Exh.30) in presence of Ravindra(PW2). The said agreement was according ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 05:08:30 ::: apeal.238.2001 3 to the complainant was scribed by Shri M.L.Shah,Advocate. According to said agreement Rs. 80,000/- were given to the accused and the said amount was given in the house of accused.
5. Except agreement (Exh.30) there is no other document on record to show that amount was paid by the complainant to accused. What is important to note that there is no mention of this agreement(Exh.30) in the statutory notice (Exh.31) or in the complaint itself. For the first time, during the course of evidence the said fact was brought on record. Further Shri M.L.Shah, Advocate is also not examined. The evidence of Ravindra(PW2) shows that amount was not paid in his presence. In the cross- examination, the complainant has accepted that when accused Manoj used to go outside he used to look after the transaction of the R.S.Garments,a proprietory concern of the accused. He has also admitted that he used to look after his bank transaction.
6. The learned Court below on appreciation of the evidence found that agreement(Exh.30) is not a trustworthy and reliable document. According to complainant, the cheque in dispute was issued towards the part payment of the amount shown ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 05:08:30 ::: apeal.238.2001 4 in the agreement,but the Court found that the complainant has failed to discharge the burden that the cheque in question was issued by accused in discharge of the legal liability. No case is made out for interference. Hence, appeal is dismissed.
JUDGE Kitey ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 05:08:30 :::