Bombay High Court
Shegaonkar Associates And Engg. ... vs Jog Rubber Products Pvt. Ltd. Thr. ... on 21 June, 2022
Bench: Avinash G. Gharote
7appeal306.11.odt
1
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 306/2011
Shegaonkar Associates & Engineering Pvt. Ltd ..Versus...Jog Rubber Products
Pvt Ltd
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. R.P.Dixit, Advocate for the appellant
Mr. Y.B.Mandpe, Advocate for respondent.
CORAM : AVINASH G. GHAROTE, J.
DATE : 21/06/2022
1] Heard Mr. Dixit, learned counsel for the appellant
and Mr. Mandpe, learned counsel for the respondent.
2] The appeal challenges the judgment dated
24.12.2010 passed by the learned JMFC, whereby the
accused/respondent has been acquitted of the offence under
Section 138 of the N.I. Act.
3] The facts in short are that, the complainant as
well as the accused both are private limited companies. The
complainant claims that the accused company had sought loan
for its business purposes to the tune of Rs.2 lakh for which a
cheque bearing No. 443419 drawn on the HDFC Bank,
Shankar Nagar, Nagpur, dated 20.10.2006 was given to
Respondent company. As against the aforesaid liability, the
7appeal306.11.odt
accused company is claimed to have issued a cheque bearing
No. 035945 dated 27.1.2009 drawn on the Navoday Urban
Co-Operative Bank Ltd., Dhantoli, Nagpur, which was
presented on 28.1.2009, & was returned back with the
endorsement "funds insufficient" under the memo of HDFC
bank, dt 29.1.2009. At the instructions of the Respondent, it
was again presented on 16.3.2009, whereupon it was again
dishonoured for insufficient funds by the bank memo dated
16.3.2009. A notice under Section 138 of the N.I Act came to
be issued on 29.3.2009, which was not replied, as a result of
which the complaint came to be filed.
4] During the course of the trial, the witness for the
complainant, namely Chandrashekar Shegaonkar during his
cross-examination has admitted to have received Rs. 16,500/-
each on 30.10.2006, 28.01.2007, 28.5.2007, 09.08.2007,
06.02.2007 and 18.4.2008, totalling to Rs. 81,000/-, (para 13,
pg 78) which was before the cheque came to be presented for
realization. It is thus apparent that as on the date of
presentation of the cheque, the amount of the cheque which
was Rs. 2 lakh was clearly not due and payable. A plea was
raised that the aforesaid amount of Rs. 81,000 was paid by the
respondent company to the complainant on account of
interest, however it is an admitted position on record that
there is no agreement between the appellant and the
respondent of any nature whatsoever, so as to indicate any
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entitlement of the appellant company for any interest (para
12, pg 78).
5] It is material to note that since the complainant as
well as the accused are both private limited companies,
therefore, any transaction between them ought to have been
evinced by a written agreement. In absence of such a written
agreement, the claim of the complainant/appellant of any
entitlement to any interest clearly cannot be sustained.
Mr.Dixit, learned counsel for the appellant has not been able
to point out any other document which would support the
entitlement of the complainant to the claim of interest,
considering which the dismissal of the complaint by the
learned JMFC on the above two grounds cannot be faulted
with. I am therefore unable to find any reason to interfere in
the judgment by the trial Court. There is no merit in the
appeal and the appeal is accordingly dismissed. No costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:21.06.2022 18:45
