Shri Shyamsunder Chandrabhan ... vs Satish Ramaji Ashtankar
2021 Latest Caselaw 1349 Bom

  903cri.apeal125.2020.odt                                                    1


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

                       CRIMINAL APPEAL NO. 125 OF 2020


  Shri Shyamsunder Chandrabhan
  Padole, Aged about 47 years,
  Occ. Business, r/o Besa, Nagpur                           ...APPELLANT

            // VERSUS //

  Satish Ramaji Ashtankar
  Aged about 43 years,
  Occ. Business, R/o Nehru Nagar,
  Sakkardara, Nagpur, P.S. Hudkeshwar              ...RESPONDENT

  ___________________________________________________________

  Shri S.B. Trivedi, Advocate for the appellant.
  Shri R.P. Dixit, Advocate for respondent-sole.
  ___________________________________________________________

                               CORAM   :   PUSHPA V. GANEDIWALA, J.

JANUARY 20, 2021.

ORAL JUDGMENT :

This is an appeal against acquittal of the respondent

for the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short "N.I. Act") vide judgment dated

26/07/2019 passed by the 12th Joint Civil Judge, Senior Division

and Additional Chief Judicial Magistrate, (Special Court 138 N.I.

Act), Nagpur, in S.C.C. No. 13705/2016.

2. It is stated that the impugned cheque was issued by the

respondent in favour of the appellant/ complainant towards balance

sale consideration for sale of 1/7th share of the appellant/

complainant in the property described below :

"Ancestral property at Mouja Harpur, PH No. 39/A, CTS No. 539, Corporation House No. 3158 A/2, Ward No. 21, Khasra No. 32/2, Plot No. 2, ad- measuring about 1500 sq. ft."

3. It is stated that the total consideration for his share was

fixed at Rs.3,35,000/- and a cheque of Rs. 1,00,000/- dated

06/04/2016 issued by the respondent was honoured, however, the

impugned cheque for Rs.2,00,000/- dated 30/06/2016 drawn on

Bank of Baroda, Nagpur, was dishonoured for the reason of STOP

PAYMENT.

4. The trial Court recorded the evidence as adduced by

both the parties and acquitted the respondent for the offence

punishable under Section 138 of the N.I. Act, mainly on the ground

that the appellant/ complainant has failed to prove the existing

legally recoverable debt against the respondent.

5. The impugned judgment of acquittal is challenged in

this appeal.

6. I have heard Shri Trivedi, learned counsel for the

appellant and Shri Dixit, learned counsel for the respondent and

also perused the record with their assistance.

7. At the outset, it is the contention of the learned counsel

for the respondent that total consideration of Rs.17,00,000/- for the

aforesaid property was paid to all the owners of Padole family and

consequently the sale-deed (Exh. 35) dated 26/04/2016 came to be

executed. However, thereafter the respondent came to know that

for the aforesaid property the original owner Shri Chandrabhan

Padole had already executed a 'Will' in favour of Rohit Padole and

Nikhil Padole (grand sons of the original owner). On query being

made to the learned counsel with regard to the knowledge of

execution of said 'Will', the present appellant/ complainant could

not point out his knowledge from the record. However, the

appellant also does not dispute the execution of said 'Will'. This

clearly indicates the appellant / complainant was not the owner of

the aforesaid property on the date of issuance of impugned cheque.

8. In such circumstances, the findings recorded by the

learned trial Court that the appellant/complainant has failed to

prove the existence of legally recoverable debt against the

respondent is correct and proper. Learned counsel for the

respondent also brought to the notice of this Court about the filing

of a Civil Suit for declaration against the members of the Padole

family including the beneficiaries in the alleged Will.

9. In such circumstances, this Court do not find that any

error or infirmity has been committed by the trial Court in

acquitting the respondent, warranting any interference. Hence,

Criminal Appeal stands dismissed.

JUDGE D.S.Baldwa