apeal680.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.680 OF 2006
Vitthal s/o Ramchandra Bawankule,
Aged about 45 years,
R/o Bajrang Park,
Sharda Chowk, Kamptee,
Tah. Kamptee, Dist. Nagpur. ....... APPELLANT
...V E R S U S...
Kishor s/o Sheshrao Thakre,
Aged about 40 years,
R/o Bajrang Park, Sharda Chowk,
Kamptee, Tah. Kamptee,
District Nagpur. ....... RESPONDENT
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None for Appellant.
None for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
10 OCTOBER, 2017.
ORAL JUDGMENT
1] The counsel for the appellant is consistently absent.
2] By order dated 08.09.2017 this Court directed the
appellant to pay costs of Rs.201/- to be deposited with High Court Legal Aid Sub-Committee, Nagpur.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: apeal680.06.J.odt 2 3] The costs have not been deposited. Even today, there is no appearance on behalf of the appellant. The counsel appearing on behalf of the respondent is also absent. 4] In view of the absence of both the counsels for the appellant and the respondent, this Court requested Shri H.R. Dhumale, the learned Additional Public Prosecutor to assist the Court in the scrutiny of the record.
5] The learned Additional Public Prosecutor has ably assist the Court. I propose to decide the appeal on merits, consistent with the dictum of the Hon'ble Supreme Court in Bani Singh and others vs. State of Maharashtra, (1996) 4 SCC 720. 6] The appellant is aggrieved by judgment and order dated 01.04.2008 in Summary Criminal Case 151/2004, by and under which, the respondent came to be acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: apeal680.06.J.odt 3 7] The gist of the complaint is that the accused issued the disputed cheque in favour of the complainant towards existing liability, that is payment of rent.
8] The complaint recites that the cheque was presented on 09.02.2004 and was dishonoured. The statutory notice was issued, but in vain.
9] I have perused the evidence on record. The cheque Exh.12 is dated 10.02.2004.
10] The documents at Exh.13 and 14 reveal that the cheque was presented-deposited a day prior to the date of cheque. Exhibit 13 reveal that the cheque was presented for encashment on 09.02.2004.
11] The learned Magistrate has recorded a finding of fact that since the presentation of the cheque was premature, offence under section 138 of the Negotiable Instruments Act is not made out.
::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 ::: apeal680.06.J.odt 4 12] The view taken by the learned Magistrate is a possible view and I do not find any perversity in the judgment warranting interference in appeal.
13] The appeal is sans merit and is rejected.
JUDGE NSN ::: Uploaded on - 10/10/2017 ::: Downloaded on - 11/10/2017 02:11:30 :::