Bombay High Court
Prakash S/O. Chimaji Shirsath vs Dipak @ Dilip S/O. Shivlal Gugale on 2 March, 2021
Bench: Mangesh S. Patil
927.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.151 OF 2019
WITH APPLN/897/2020 IN ALP/151/2019
PRAKASH S/O. CHIMAJI SHIRSATH
VERSUS
DIPAK @ DILIP S/O. SHIVLAL GUGALE
...
Advocate for Appellant : Mr. Kulkarni Akshay D.
Advocate for Respondent : Mr. N.C. Garud
...
CORAM : MANGESH S. PATIL, J.
DATE : 02.03.2021
PER COURT :
Heard both the sides.
2. The original complainant has filed this Application under
Section 378 (4) of the Code of Criminal Procedure, seeking leave to
challenge the judgment and order whereby the respondent has been
acquitted by the learned Magistrate of the offence punishable under Section
138 of the Negotiable Instruments Act.
3. After hearing both the sides, it transpires that the learned
Magistrate has acquitted the respondent solely on the ground of failure of
the applicant complainant to discharge the liability to prove that the cheque
in question was issued for discharge of some legally enforceable debt or
liability.
4. It appears from the observations in the impugned judgment
particularly the paragraph Nos. 24 to 31, the reasoning resorted to by the
learned Magistrate is to the effect that there was difference in the ink in
which the contents of the cheque were filled. He would further pointed out
that the applicant complainant had come with a case that he had borrowed
927.odt
the money from a bank for being paid to the respondent accused. The
transaction having allegedly taken place in the year 2009 it was a huge
amount of Rs.2,10,000/-. There was no evidence to show that the applicant
complainant was economically well off so as to lend such a huge money.
Even he was not aware about the family background of the respondent
accused. It was improbable that in such eventuality he would have lend
such a huge amount to the respondent accused. Having resorted to such
reasoning the learned Magistrate observed that there was reasonable and
serious doubt as to if the cheque could have been issued to satisfy a legally
enforceable debt.
5. Needless to state that it is a matter of appreciation of evidence
which can be resorted to at the final hearing. Pertinently, the learned
Magistrate has come to the conclusion that rest of the ingredients for
constituting the offence were duly made out by the applicant complainant.
6. It is in view of such a state of affairs, it would be appropriate to
grant leave to prefer an Appeal.
7. There is one more reason. The applicant complainant has also
filed Criminal Application No.897/2020, in all probability because of the
reasoning resorted to by the Magistrate, seeking permission to lead
additional evidence in respect of papers regarding borrowing of loan by him.
8. Considering all the aforementioned state of affairs, the
Application is allowed. Leave is granted.
(MANGESH S. PATIL, J.)
habeeb
