Rajesh S/O Ratanlalji Chandak vs State Of Maharashtra, Through ...
2017 Latest Caselaw 3701 Bom

                                                    1                      appa231.15.odt

          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
 -------------------------------------------------------------------------------------------
 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.
 -------------------------------------------------------------------------------------------
                                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.

2 appa231.15.odt

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.

3 appa231.15.odt

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