Jayshree Deepak Shah vs Yasmina Naresh Chauhan And Anr
2022 Latest Caselaw 9722 Bom

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                                                         914.ALP.28.2018 .doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPLICATION (ALP) NO. 28 OF 2018

Mrs. (Dr.) Jayshree Shah                          ..Applicant
      V/s.
Mrs. Yasmina Naresh Chauan                        ..Respondent

Ms. Jayshree Shah, Applicant in person.
Mr. N. B. Patil, APP for the Respondent-State


                            CORAM : NITIN W. SAMBRE, J.

DATED : 23rd September, 2022 P.C.:

1. The case of the applicant, who happens to be a complainant

in a case initiated for the offence u/s. 138 of the Negotiable

Instrument Act, the non-applicant/accused was given friendly loan

of Rs.50,000/- as against which the cheque was issued, which was

dishonoured.

2. The complaint came to be initiated based on the return

memo dated 10/01/2009 issued by the bank. The cause of

dishonour of cheque is shown to be insufficient funds.

3. The Court of Metropolitan Magistrate vide judgment dated

11/12/2014 directed acquittal of the non-applicant/accused, as

such this application for grant of leave to appeal.

4. The contentions of the applicant who appears to be in-

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person is, the metropolitan magistrate has misread the evidence

and the pleadings. According to her, the acceptance of an amount

of Rs.50,000/- is duly admitted and that being so the Court below

ought to have inferred that the cheque which was issued and

dishonoured was towards an admitted liability.

5. So as to substantiate her said claim for conviction of the

non-applicant/accused, the applicant/complainant would urge that

the non-applicant/accused given an admission that she has paid

an amount of Rs.5,000/- as against the aforesaid liability.

6. As such, she would urge that the acquittal of the non-

applicant / accused is based on completely erroneous findings.

7. I have appreciated the said submissions.

8. The complainant is justified in claiming that the non-

applicant/accused has admitted receipt of an amount of

Rs.50,000/-

9. However, in the cross examination of the applicant who

happens to be the complainant before the Metropolitan Magistrate

a categorical admission is given that the cheque was issued to the

present applicant in the police station for an amount of

Rs.50,000/- and recovery of Rs.5,000/- was made in the police

station from the non-applicant/accused in favour of the

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complainant.

10. As such, the Court of Metropolitan Magistrate was justified in

recording the statement that the cheque was not issued towards

admitted liability but was forcefully taken from the

non-applicant/accused with the aid of the police.

11. The aforesaid admissions are not explained by the

complainant.

12. That being so, the order of acquittal is quite justified.

13. No case of grant of leave is made out. Leave stands refused.

          Digitally signed
ANANT     by ANANT
          KRISHNA NAIK
KRISHNA   Date:
NAIK      2022.09.26
          20:18:27 +0530

                                                             (NITIN W. SAMBRE, J.)




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