Bombay High Court
Utkranti Nagri Sahakari Patsanstha ... vs Alim Kha Rahim Kha on 14 August, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 1020 OF 2023
IN
CRIMINAL APPEAL STAMP NO. 6696 OF 2023
Utkranti Nagri Sahakari Patsanstha Maryadit, Jarud Vs Mr. Alim Kha Rahim Kha
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. C.J. Dhumane, counsel for the applicant/appellant.
Mr. V.T. Deshpande, APP for the respondent/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 14/08/2024.
1. By this application, the applicant, who is a financial
institute, seeks leave to file an appeal against the acquittal in
Summary Criminal Case No. 1490/2017.
2. Heard Mr. C.J. Dhumane, the learned counsel for the
applicant, who submitted that the account extract is wrongly
appreciated by the trial court, and it is held by the learned
trial court by referring to the judgment of Laxmikant D. Naik
Karmali Vs Santosh V. Naik [2006 (2) Bom. C.R. (Cri.) 830],
that for the purpose of Section 138 of the Negotiable
Instruments Act, 1881 (hereafter referred to 'N.I.Act'), the
cheque should be towards the discharge of either purpose debt
or part of debt. If the cheque is for more than the amount of
the debt, Section 138 of the N.I. Act cannot be attracted. He
submitted that the principal amount which was disbursed to
the accused was Rs. 40,000/-, and thereafter the accused has
not repaid the amount, and the interest was accrued therein,
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which is Rs. 30,187/-. Thus, against the total due amount, the
cheque was issued of Rs. 69,000/-, but the trial court has not
considered the same and acquitted the accused on a wrong
perception.
3. He submitted that he has many arguable points in the
present appeal. In view of that, the leave is granted.
4. Learned counsel for the respondent strongly opposed
the said application and submitted that the evidence which
was adduced by the complainant itself is sufficient to show
that the cheque was issued against the due amount, which was
only Rs. 37,800/-, and the learned trial court has rightly
appreciated the same. In view of that, the application deserves
to be rejected.
5. After hearing learned counsel for the applicant and
learned counsel for the respondent, perused the impugned
judgment as well as the account extract and the evidence
which was adduced before the learned trial court. At this
stage, the submission made by the learned counsel for the
applicant that the cheque was issued against the principal
amount and the interest accrued therein is substantiated by
the account extract.
6. Thus, the learned counsel for the appellant has pointed
out that he has many arguable points in the present appeal. In
view of that, leave is to be granted. Accordingly, I proceed to
pass the following order:
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a] Leave is granted to prefer an appeal against the
acquittal.
b] The criminal application (APPA) No. 1020/2023
is disposed of. The appeal be registered.
CRIMINAL APPEAL STAMP NO. 6696/2023
1. The criminal appeal can be disposed of at the
admission stage.
2. Call for record and proceedings.
3. The appeal be placed before the Court after receipt
of record and proceedings.
[URMILA JOSHI-PHALKE, J.]
Signed by: Mr. R.K. NANDURKAR
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Designation: PA To Honourable Judge
Date: 21/08/2024 18:47:02
