Shetkari Sahakari Mishra Khat ... vs Arun Sadashiv Labhsetwar
2017 Latest Caselaw 6500 Bom

 apeal396.02.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.396 OF 2002

          Shetkari Sahakari Mishra Khat
          Karkhana Regd. No.591, through its
          Secretary/Representative
          Shri Shantilalji Bhatt, Aged about 55
          years, R/o Digras, Tq. Digras,
          District Yavatmal.                    ....... APPELLANT

                                   ...V E R S U S...

 1]       Arun Sadashiv Labhsetwar,
          Aged about 55 years,
          Occ: Business/Proprietor of Labhsetwar
          Krishi Kendra, Darwha, resident of
          Darwha, District Yavatmal.

 2]       The State of Maharashtra, through
          P.S.O. Digras, District Yavatmal.                  ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri D.R. Upadhye, Advocate holding for Shri S.U. Nemade,
          Advocate Appellant.
          Shri N.S. Bhattad, Advocate for Respondent No.1.
          Shri H.R. Dhumale, APP for Respondent No.2.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                rd
                            23    AUGUST, 2017.


 ORAL JUDGMENT

Shri D.R. Upadhye, Advocate holding for Shri S.U.

Nemade, Advocate for the appellant.

Shri N.S. Bhattad, the learned counsel for the

respondent 1 and Shri H.R. Dhumale, the learned Additional

Public Prosecutor for respondent 2/State.

2] This appeal is directed against the judgment of

acquittal dated 08.03.2002 delivered by the Judicial Magistrate,

First Class, Digras in Complaint Case 530/1997, by and under

which, the respondent 1/accused is acquitted of the offence

punishable under section 138 read with section 142 of the

Negotiable Instruments Act, 1881.

3] The learned counsel for the appellant would submit

that the judgment impugned is against the weight of evidence and

borders on perversity. He would urge that the accused did not

rebut the statutory presumption under section 118(a) and 139 of

the Negotiable Instruments Act, 1881. The learned counsel would

further urge that the representative of the original complainant

was duly authorized to file the complaint under section 138 read

with section 142 of the Act and that the finding of the learned

Magistrate that the complaint is untenable is bad in law. He would

urge that since the complainant is a registered society and is a

juristic person, it could have authorized any person to present and

prosecute the complaint. According to the learned counsel, the

Magistrate has committed a serious error in not appreciating the

settled legal position.

4] Per contra, the learned counsel for the respondent 1

Shri N.S. Bhattad would urge that the complaint before the

learned Magistrate and the appeal against the order of acquittal, is

nothing but a gross abuse of the process of law. The learned

counsel would invite my attention to the cross-examination of the

P.W.1 Shantilal Bhat who presented the complaint before the

Magistrate claiming to be the Secretary of the society. Before I

consider the portion of the cross-examination to which my

attention is invited, it would be pertinent to note that in the

examination-in-chief Shri Shantilal Bhat states that he is the

ex-Managing Director of the society and claims that the society

has resolved to authorize him to file suit and cases for recovery of

arrears. The said resolution is marked as article 'A' for

identification. However, the said resolution has not been proved

during the trial. The cross-examination would reveal that the

witness admits that he was working as Managing Director of the

complainant till 1996 and that there was no post of Secretary.

He admits that he was not appointed Secretary of the

complainant. He further admits that there was no post of

Secretary when he presented the complaint before the learned

Magistrate. He admits that after 1996 he was not having any

concern with any transaction of the complainant and that after the

expiry of his tenure as Managing Director one Sanjay Uttamrao

Deshmukh was the Managing Director. He is not aware as to in

whose presence the resolution authorizing him to file suit was

passed nor does the complainant know who proposed the

resolution and seconded the same. He admits that the

complainant society stands liquidated and "sold out".

5] In the teeth of the aforesaid evidence, there is

absolutely no infirmity in the view taken by the learned Magistrate

that the complaint is not tenable. Indeed, I am inclined to agree

with the submission of Shri N.S. Bhattad, the learned counsel for

the accused, that the proceedings before the trial court and before

this Court tantamount to gross abuse of the process of law. I was

inclined to saddle exemplary costs. However, I am told that

Shri Shantilal Bhat is no more.

7] The appeal is frivolous and is an abuse of process of

law and the same is rejected.

JUDGE

NSN