Ramesh vs Eknath
2012 Latest Caselaw 82 Bom

     apeal634.08.odt                                                                                                           1/4


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                     
                      NAGPUR BENCH : NAGPUR




                                                                                    
                             CRIMINAL APPEAL NO. 634 OF 2008

                Ramesh S/o Kisanrao Ingole




                                                                                   
                aged about 35 yrs., Occ. Service,
                r/o Somthana, Tq. Malegaon,
                Distt. Washim.                ::                                                          APPELLANT




                                                               
                         .. Versus
                                    ..

          1. Eknath s/o Haribhau Thigale,
                                    
             aged Adult, Occ. Business,
             President, Jijamata Krushi Sanstha,
             Katoda Tahasil, Tq. Chikhali,
                                   
             Distt. Buldhana.

          2. Niteshkumar s/o Eknath Thigale,
             aged Adult, Occ. Business,
      


             Secretary, Jijamata Krushi Sanstha,
             Katoda Tahasil, Tq. Chikhali,
   



             Distt. Buldhana.           ::                                                       RESPONDENTS
                                                                        
     ...................................................................................................................................
                                   Shri O. Y. Kashid, Advocate for the appellant.





                               Shri N. B. Kalwaghe, Advocate for the respondents.
     ...................................................................................................................................


                                             CORAM :   A. R. JOSHI, J.





                                             DATED  :   OCTOBER, 04, 2012


     J U D G M E N T 

1. Heard rival submissions on this criminal appeal challenging

the judgment and order of acquittal of respondents-accused in the

matter of offence punishable under Section 138 of the Negotiable

apeal634.08.odt 2/4

Instruments Act, 1881. The impugned judgment and order was passed

on 17/7/2008 by the Judicial Magistrate, First Class, Malegaon.

2. The only question, which was relevant before the trial

Court, was whether the concerned cheque for Rs.50,000/- was towards

the repayment of any legally enforceable debt or towards any liability?

In order to ascertain whether the impugned judgment and order is

required to be interfered with or not, the factual position is narrated as

under:

Admittedly, there was some understanding between the

accused persons, President and Secretary of Jijamata Krushi Sanstha,

Katoda and the present appellant-original complainant by which seeds

of crop by name Kolius were to be purchased by the complainant from

the accused at the rate of Rs.10,000/- per acre and after sowing the

said seeds in his own field, the complainant has to cultivate the crop

and the final yield of the crop was to be sold to the society-accused

persons @ Rs.8,000/- per quintal. It was also agreed between the

parties that the complainant shall not sale the said crop to anybody

else. According to the complainant, as and by way of advance

payment, the concerned cheque for Rs.50,000/- was given to him by

the society on 26/6/2006. It was deposited with the banker of the

complainant, however, it was dishonoured with an endorsement, 'no

apeal634.08.odt 3/4

sufficient funds in the accounts' and hence a demand notice was

issued to the accused persons and ultimately criminal complaint was

filed since there was no reply to the demand notice so also there was

no payment for dishonoured cheque.

3. It is a case in which the only evidence of the complainant

was recorded. During his cross-examination, the complainant has

specifically agreed regarding terms and conditions of the agreement

between the parties as mentioned above. So also, he has agreed that

by way of an advance the concerned cheque was given to him. As

such, there is nothing brought on record by the complainant that

whether he had concluded his part of the contract i.e. after growing

the crop of Kolius, whether he had given the said final crop to the

accused. During the cross-examination, the complainant had came

with a different story that accused had given him a cheque as deposit

amount probably a security deposit for not to sell the crop to any third

party. As such, it is apparent that as on giving of the said concerned

cheque to the complainant, there was no legally enforceable liability

and the right to receive the money @ Rs.8,000/- per quintal has not

accrued in favour of the complainant. During the cross-examination

the complainant had specifically agreed that he had no correspondence

with him as to giving intimation to the accused persons to receive the

apeal634.08.odt 4/4

crop cultivated by him. In fact, it is not at all the case of the

complainant that he had cultivated the crop and delivered it to the

accused persons and thus was entitled to receive the sale proceeds of

the said crop from the accused persons.

4. When the impugned judgment is perused, which is in

vernacular - Marathi, there is nothing to interfere in the said judgment

and specifically the observations made in para Nos. 7, 8 and 9 of the

impugned judgment. There is no substance in the present appeal. The

appeal is, therefore, dismissed and accordingly disposed of.

JUDGE

wwl