Bombay High Court
M/S Sai Auto Agencies Thr. Its ... vs Hemant Ambadas Bajad on 21 June, 2022
Bench: Avinash G. Gharote
1 18 APPA-190-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.190 OF 2022
IN
CRIMINAL APPEAL (ST) NO.1777 OF 2022
(M/s Sai Auto Agencies, Amravati .Vs. Hemant Ambadas Bajad)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri. N. S. Badhe, Advocate for Applicant/Appellant.
Ms. G. Diwe h/f Shri. P. R. Agrawal, Advocate for Non-Applicant.
CORAM : AVINASH G. GHAROTE, J.
DATE : 21st JUNE, 2022.
. Heard Mr. N. S. Badhe, learned Counsel for
Applicant and Ms. Diwe, learned Counsel holding for
Mr. P. R. Agrawal, learned Counsel for Non-Applicant on
the question of leave.
2. Certain facts are undisputed that the cheque of
Rs.14,72,799/- drawn on the Axis Bank Ltd., Pune
bearing Cheque No.215535 dated 16.06.2011 was
issued by the Non-Applicant in favour of the Applicant
(Page 96) which when presented, was dishonored on
account of payment having been stopped by the
Non-Applicant, as per the Cheque Return Memo issued
by the Bankers of the Applicant namely State Bank of
India dated 13.07.2011. The Non-Applicant thereafter
on 03.08.2011 tendered an amount of Rs.40,500/-, to
the complainant, the receipt of which is not disputed.
Thereafter, a notice of demand was issued on
11.08.2011 in which, there is mention about the receipt
of the aforesaid amount (Page 102). A reply was
received by the complainant on 17.09.2011. Complaint
2 18 APPA-190-2022.odt
was filed on 23.09.2011 subsequent to which, part
amount of Rs.3,90,000/- has been received by the
complainant, which also is not disputed. The Trial Court
by its judgment dated 18.01.2018 convicted the accused
for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for short, "the said
Act") and sentenced him to suffer Simple Imprisonment
for three months and pay a compensation of
Rs.10,50,000/- in default of payment of compensation
to suffer Simple Imprisonment for one moth.
3. The Appellate Court by the impugned judgment
dated 05.01.2022 on the premise, that since it was an
admitted position that amounts had been received by
the complainant after the dishonor of the cheque and
prior to issuance of a notice and also consequently filing
of the complaint, was of the opinion, that the amount
stated in the cheque could no longer be termed as being
one for legal debt and liability, as part of the amount
was also already received by the complainant and
allowed the appeal dismissing the complaint.
4. Ms. Diwe h/f Mr. P. R. Agrawal, learned Counsel
for Non-Applicant relies upon M/s. Alliance
Infrastructure Project Pvt. Ltd. and Ors. ..Vs.. Vinay
Mittal, 2010 (2) Crims 672 to contend, that pursuant to
the receipt of part of the cheque amount, the amount of
money due would not be what is mentioned in the
cheque, and therefore, the cheque would not be
presentable at the behest of the complainant, which also
3 18 APPA-190-2022.odt
considers Section 56 of the said Act and supports the
impugned judgment. In my considered opinion, a
question of law based upon the peculiar facts as to
whether upon receipt of the part cheque amount, the
legal debt or liability stands extinguished in as much as,
the complainant becomes ineligible to present the
cheque arises for consideration, and therefore, leave is
granted.
5. Office to register the Appeal.
6. Ms. Diwe h/f Mr. P. R. Agrawal waives notice on
merits.
7. Call Record and Proceedings.
8. List the matter on 06.07.2022 for final hearing.
JUDGE
..AT..
Digitally signed by
ASHISH ASHISH
ASHOKRAO ASHOKRAO TAMBE
Date: 2022.06.22
TAMBE 16:44:54 +0530
