Bombay High Court
Raju S/O Ramcharan Bariyekar vs Jitendrakumar S/O Dikpal Kewat on 6 August, 2024
42.appa.88.22.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.88 OF 2022
IN
CRIMINAL APPEAL (ST.) NO.8819 OF 2021
(Raju s/o Ramcharan Bariyekar Vs. Jitendrakumar s/o Dikpal Kewat)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. V.R. Borkar, Advocate for the appellant.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- AUGUST 6, 2024.
By this application, the appellant is seeking
leave to file appeal.
2. The appellant has challenged the judgment
and order of sentence passed by the Judicial Magistrate
First Class, Tirora in SCC No.580/2016 by which the
present respondent is acquitted for the offence punishable
under Section 138 of the Negotiable Instrument Act, 1881.
3. Learned Counsel for the appellant submitted
that the trial Court has erroneously held that the
complainant has not proved his financial capacity and
there is no evidence to show as to the having of so much
amount with the complainant in absence of the evidence.
4. He submitted that this observation of the trial
Court is contrary to the decision of the Hon'ble Apex Court
in the case of Tedhi Singh Vs. Narayan Dass Mahant
(2022) 6 SCC 735 wherein the Hon'ble Apex Court held
that complainant need not show in first his financial
capacity unless accused sets up a case questioning
complainant capacity in reply to the statutory notice.
5. He submitted that in paragraph No.9 it is
observed by the Hon'ble Apex Court that :
"The Trial Court and the First Appellate
Court have noted that in the case under
Section 138 of the N. I. Act the complainant
need not show in the first instance that he
had the capacity. The proceedings under
Section 138 of the N. I. Act is not a civil suit.
At the time, when the complainant gives his
evidence, unless a case is set up in the reply
notice to the statutory notice sent, that the
complainant did not have the wherewithal, it
cannot be expected of the complainant to
initially lead evidence to show that he had
the financial capacity. To that extent the
Courts in our view were right in holding on
those lines. However, the accused has the
right to demonstrate that the complainant in
a particular case did not have the capacity,
and therefore, the case of the accused is
acceptable which he can do by producing
independent materials, ..xxxx"
6. Thus, he submitted that the observation of the
trial Court that the complainant has not produced any
evidence to show his economical condition is contrary to
the observation of the Hon'ble Apex Court. He further
submitted that the appeal would take its own time for its
final decision. He pointed out from the impugned
judgement that he has many arguable points in the
present appeal.
7. Though notice is served, none appears for the
respondent.
8. I have heard learned Counsel for the
appellant and perused the impugned judgement from
which it reveals that the acquittal is on the ground that
the complainant failed to prove his financial capacity. In
view of the judgment of the Hon'ble Apex Court, it was
the accused who has to set up such a case by producing
independent material or by pointing to material produced
by the complainant himself or cross-examined the witness.
Thus, the learned Counsel for the appellant has made out
a ground to grant leave to prefer an appeal against
acquittal.
9. In view of that the application is allowed.
Leave is granted to the appellant to prefer an appeal.
10. Appeal be registered.
CRIMINAL APPEAL (ST.) NO.8819 OF 2021
On registration of the appeal, notice be issued
to the respondent, returnable after four weeks.
(URMILA JOSHI-PHALKE, J.)
*Divya
