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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION NO.231/2015 IN
CRIMINAL APPEAL NO. /2017
Shri Rajesh Ratanlalji Chandak,
aged 47 years, Occ. Business,
r/o Hanuman Chowk, Chandur Bazar,
Tq. Chandur Bazar, Dist. Amravati. ....APPLICANT
...V E R S U S...
1. State of Maharashtra through
Police Station Officer, Chandrur Bazar,
Police Station Tq. Dist. Amravati.
2. Namdeorao s/o Yashwant Nichat,
aged 53 years, Occ. Business,
r/o At Post P. Bramhanwada,
Tq. Dist. Amravati. ...NON APPLICANTS
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Mr. A. H. Lohiya, Advocate for applicant.
Mr. N. B. Jawade, A.P.P. for non applicant no.1.
Mr. G. R. Sadar, Advocate for non applicant no.2.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 28, 2017 ORAL JUDGMENT 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties.
2. This is an application seeking leave to file appeal. The present application is filed by the complainant who initiated proceeding against the non applicant no.2 for the offence punishable under Section 138 of the Negotiable Instruments Act. ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:54:15 :::
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3. In short, the case of the complainant is that the non applicant executed an agreement of sale in favour of the present applicant and and thereafter the agreement was cancelled. Therefore, the present non applicant no.2 issued a cheque for refund of the earnest amount.
4. What was expected from the complainant is to prove that the cheque was issued in discharge of the legal liability. According to the complainant, since the agreement was cancelled the non applicant issued a cheque for refund of the earnest amount. However, for the reasons best known to the present applicant, the applicant failed to file the original of the agreement on record and only filed photocopy of the same. Therefore the learned Judge of the Court below is right in not admitting the said document in evidence. Further during the course of the cross- examination, the applicant was unable to give description of the property from which, in my view the learned Judge of the Court below has rightly drawn an inference that he was not acquainted with the transaction. The statement made by Mr. Lohiya, learned counsel for the applicant that on the day of cross-examination he was not acquainted with the transaction, is hardly relevant for deciding the present application.
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5. The learned Judge, in my view, on appreciation of the evidence brought on record, has rightly reached to the conclusion that the applicant has failed to discharge his burden that the cheque in dispute was issued by the present non applicant no.2 in discharge of his legal liability.
6. In view of above, no case is made out for interference. The application is therefore rejected. Consequently, the appeal is also rejected.
Rule is discharged. No order as to costs.
(Judge) kahale ::: Uploaded on - 29/06/2017 ::: Downloaded on - 30/06/2017 00:54:15 :::