Vitthal Ramchandra Bawankule vs Kishor Sheshrao Thakre
2017 Latest Caselaw 7993 Bom

 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
 -------------------------------------------------------------------------------------------
          None for Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

          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.

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.

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.

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