Bombay High Court
Ghanshyam S/O. Krushnadasji ... vs Sau. Rekha Mukeshrao Lakde on 20 July, 2017
Bench: V.M. Deshpande
appa.146.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPA) NO. 146 of 2015
IN
CRIMINAL APPEAL NO.189 OF 2017
Ghanshyam S/o Krushnadasji Piplawa,
Proprietor-Mahavir Anaj Bhandar,
R/o Mahtma Gandhi Road,Wardha,
Tahsil and District-Wardha. ..... APPLICANT
...V E R S U S...
Sau. Rekha Mukeshrao Lakde,
Jay Shri Mataji Hotel,
Opposite Vasant Kirana Stores,
C/o Pragtibai Purushottam Parate,
Salod(Hirapur),Tahsil and District-
Wardha. ...NON-APPLICANT
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Shri R.D.Dhawad,Advocate h/f Shri D.R.Bhoyar, Advocate for the
applicant.
Shri Sanket Bhandarkar Advocate for non-applicant(appointed)
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CORAM:- V. M. DESHPANDE, J.
DATED :- JULY 20,2017
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2] This is an application under Section 378(4) of the Code
of Criminal Procedure to grant leave to file appeal.
3] A complaint was lodged by the applicant against the
non-applicant alleging therein that the non-applicant has
committed an offence under Section 138 of the Negotiable
Instruments Act. According to applicant-complainant, he runs
kirana shop and the non-applicant runs a mess. As per the
complainant, the non-applicant used to purchase various articles
and food grains to run her mess on credit. In the discharged of her
liability for the food grains and other articles which she purchased
on credit, gave two cheques dated 18/2/2014 for Rs. 35,000/-
and another cheque dated 18/3/2014 for Rs. 37,000/- drawn on
I.D.B.I. Bank, however those cheques were not honoured by the
banker of the non-applicant for the reason " funds insufficient".
Consequently, on 21/3/2014 statutory notice was issued by
applicant calling upon the non-applicant to pay amount within a
stipulated period. Since the said amount was not paid according
to complainant the complaint was filed.
4] There is no dispute that applicant runs kirana shop at
Mahatma Gandhi Road, Wardha in the name and style Mahavir
Anaj Bhandar. It is also not in dispute that non-applicant used to
purchase various food grains and other articles on credit.
5] The applicant has entered into the witness box. He
was cross-examined. He has also examined the witness to prove
his case. The defence of the non-applicant is that whenever the
non-applicant used to purchase the articles on credit at the time
of purchase of articles at next occasion she used to pay balance
amount of the previous month. It is further defence of the non-
applicant that applicant used to obtain blank cheque by way of
security from her.
6] The applicant has produced on record the extract of
his account(Exh.41).
7] The learned Judge of the Court below after
appreciating the pleadings as well as available evidence on record
noticed that the applicant has failed to prove that the disputed
cheques (Exhs. 30 and 31) were issued by the non-applicant in
discharge of her legal liability and therefore non-applicant was
acquitted of the offence punishable under Section 138 of the
Negotiable Instruments Act. The learned counsel for the applicant
contended that the learned Judge of the Court below has not
considered the extract of account book(Exh.41) in correct
perspective. He submits that said document(Exh.41) clearly
shows that the outstanding amount in the name of the non-
applicant and therefore the disputed cheques were issued by the
non-applicant in discharge of her legal liability.
8] With the assistance of both the learned counsels I have
gone through the evidence of the parties. During the course of
cross-examination though the suggestions given by the non-
applicant were that cheqeus were given by way of security is
denied. It would be useful to reproduce the following portion
appearing in cross-examination of complainant.
"/kukns'k ¼ fu-dz-30 o 31½ eyk nk[kfo.;kr vkys-
gs Eg.k.ks [kjs vkgs dh R;kojhy gLrk{kj vkjksihps
ukgh"
The aforesaid admission given by the applicant in his cross-
examination has completely destroyed his own case. It shows that
when the cheques were handed over to the applicant at that
particular point of time those were blank only having signatures of
the non-applicant. Once the complainant accepted that
handwriting on the said cheques was not of the non-applicant
that supports defence of the non-applicant that the cheques were
given only by way of security. The blank cheques clearly show
that at the time of issuance of the cheques the legal liability of the
non-applicant was not determined by the applicant.
9] Further, Exh.41 which is a extract of account book in
that behalf my attention is invited to the relevant portion of the
cross-examination of the complainant in which he has admitted
that Exh.41 is not having the name of the complainant's
commercial establishment. Looking to the facts of the case and
aforesaid discussion according to me, no irregularity or illegality
has been committed by the learned Court below while acquitting
the non-applicant. Merely, because another view is possible that
is not sufficient to interfere with the judgment and order of the
acquittal. The view taken by the learned Judge of the Court below
shows that he has placed reliance on the available material on
record. Hence, no interference is required in the judgment and
order passed by the learned Court below. Hence, leave is refused.
Consequently, the appeal is dismissed.
I must place on record my appreciation for Shri
S.K.Bhandarkar,learned counsel for non-applicant(appointed)
who has represented the non-applicant who was not able to
engage service of the private lawyer.
Rule is discharged with no order as to costs.
JUDGE
kitey
