Bombay High Court
Mahesh Nagari Sahakari Patsanstha, ... vs Ashish Subhash Varma And Another on 19 January, 2024
{1} ALP 81 OF 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY
NO. 81 OF 2023
. Mahesh Nagari Sahakari Patsanstha,
Sangamner,
Tq.Sangamner, Dist.Ahmednagar,
Through its Recovery Officer,
Dattatraya Machindra Nichal
Age: 38 years, Occu.: Recovery Officer,
R/o. Ashok Chowk, Mahesh Nagari
Sahakari Pat-sanstha, Sangamner. ....Applicant
Versus
1. Ashish Subhash Varma
Age: 44 years, Occu.: Business,
R/o. Vakil Colony, Near Abhang Mala,
Sangamner, Tq.Sangamner,
Dist.Ahmedngar.
2. State of Maharashtra ....Respondents
.....
Advocate for Applicant : Mr. Mehul Vikas Navandar
APP for Respondent no.2 : Mr.S.M.Ganachari
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 11 JANUARY, 2024
PRONOUNCED ON : 19 JANUARY, 2024
ORDER :
1. Aggrieved by the judgment and order of acquittal passed by
learned JMFC (Court No.3), Sangamner, dated 28-04-2023 in S.C.C.
No.838 of 2019, applicant is seeking leave to file appeal.
{2} ALP 81 OF 2023
2. Learned Counsel for applicant would submit that proceedings
under Section 138 of the Negotiable Instruments Act (for short "the
NI Act") was instituted by applicant against present respondent no.1,
who is a member of Pat-sanstha. That loan to the tune of
Rs.3,00,000/- was obtained by respondent no.1 by accepting all the
terms and conditions and he was thereby required to repay the loan
alongwith interest in installments. Respondent no.1 has paid
Rs.2,55,632/- to the applicant till 24.03.2015. However, it is alleged
that respondent no.1 has issued a cheque of Rs.2,61,000/- dated
30-04-2019 towards balance loan amount and interest amount for
clearance of the loan, but the said cheque was returned with the
remark "No such account" and therefore, after serving notice, when
respondent no.1 failed to repay the cheque amount, complaint
bearing S.C.C. No.838 of 2019 was instituted .
3. Learned Counsel for the applicant pointed out that all legal
requirements for attracting offence under Section 138 of the NI Act
are available in the evidence. However, still even when there was
legally enforceable debt, learned trial Court erred in holding that
there was no issuance of cheque towards legally enforceable debt.
That the learned trial Court held that respondent no.1 had paid
{3} ALP 81 OF 2023
Rs.2,55,632/- to applicant and thereby had cleared dues alongwith
interest. However, learned trial Court has failed to appreciate the fact
that respondent no.1 has to repay total loan amount alongwith
interest.
4. In support of above contention, loan statement is also placed
on record under the head of "Customer Ledger" in respect of present
respondent no.1, which is already marked as exh.58 in the trial
Court. Now, arguments are raised by applicant / complainant that
such statement has not been properly appreciated by the learned trial
Court.
5. The instant application has been instituted on 09-06-2023.
Inspite of matter appearing on board five times i.e. on 26-09-2023,
17-10-2023, 26-10-2023, 30-11-2023, 04-01-1024, and though the
matter being adjourned for submissions of respondent no.1, who is
admittedly served on 12-09-2023, none appears to answer the
application. On 04-01-2024, as respondent no.1 was absent, matter
was adjourned by way of last chance. Today also none appears and
therefore, matter is taken up for hearing and order.
6. After hearing the submissions of learned Counsel for applicant
{4} ALP 81 OF 2023
and on going through the judgment under challenge, it transpires
that learned trial Court in its order dated 28-04-2023, after
discussing the respective cases put-forth during argument, has
observed in paragraph nos.9 and 10 of the impugned judgment that
presumption under Section 118 of the Act has remained unrebutted
at the end of accused. That contention of the accused that he did
not issue disputed cheque is also rejected by the learned trial Court in
paragraph no.11 of its judgment. However, complaint seems to have
been dismissed primarily on the basis of cross-examination of C.W.-1
Dattatraya Nichal, wherein there are certain admission that on
03-05-2019 an amount of Rs.2,55,632/- has been paid by the
accused. Considering such material, learned trial Judge seems to
have observed that on such admission of witness, it cannot be denied
that there is absolutely no transaction between accused and
complainant. However, considering admission of witness about
receipt of Rs.2,55,632/-, learned trial Judge seems to have recorded
a finding that there are no dues and that issuance of notice
demanding Rs.2,61,000/- is also creating doubt.
7. Before this Court, learned Counsel for the applicant has placed
on record copy of "Customer Ledger" and it is pointed out that there
{5} ALP 81 OF 2023
is no receipt of said amount of Rs.2,55,632/-.
8. Therefore, in the light of above material, prima facie, there are
grounds to be agitated in appeal. Inspite of drawing presumption
under Section 118 of the NI Act, learned trial Judge has acquitted the
accused. Hence, case is made out for filing appeal and so leave
deserves to be granted as prayed.
ORDER
I. The application stands allowed.
II. Leave is granted to file Appeal.
III. Registry to register the Appeal.
IV. Appeal stands admitted.
V. Call record and proceedings.
( ABHAY S. WAGHWASE )
JUDGE
SPT
