Bombay High Court
Jagruti Sugar Allied Industries Ltd. ... vs Shivram S/O. Shripati Nagmode on 23 January, 2024
2024:BHC-AUG:1363
{1} ALP 112 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY
NO. 112 OF 2018
Jagruti Sugar Allied Industries Ltd.
Having registered Office at Rajiv Gandhi
Chowk, Latur Through its Chief Agri. Officer,
Prakash S/o. Marotrao Pawar
Age: 53 years, Occu.: Service,
R/o. Latur, Tq. & Dist.Latur. ....Applicant
Versus
Shivram S/o. Shripati Nagmode
Age: Major, Occu. Business,
R/o. Chincholraowadi, Tq.
and Dist.Latur. .....Respondent
.....
Advocate for Applicant : Mr. P. P. More
Advocate for Respondent : Mr. T.M.Venjane
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18 JANUARY, 2024
PRONOUNCED ON : 23 JANUARY, 2024
ORDER :
1. By instant application, original complainant, who initiated
proceedings under Section 138 of the Negotiable Instruments Act (for
short "N.I.Act"), is hereby seeking leave to file appeal against
judgment and order passed by the learned Judicial Magistrate First
Class, Deoni, Dist.Latur, acquitting respondent from offence under
{2} ALP 112 OF 2018
Section 138 of the N.I. Act.
2. Learned Counsel for applicant submitted that applicant /
complainant is a private limited Company. That respondent accused
executed contract with applicant for providing and supplying services
on demand and had obtained advance amount. He did not render
services and on demand of repayment of advance amount, cheque
was issued, but it got dishonoured and therefore, notice was sent as
required under the law, however, still cheque amount has not been
paid and therefore, proceedings under Section 138 of the N.I.Act
were instituted, however, learned trial Court failed to consider and
appreciate the case made out by applicant and acquitted respondent
accused. It is pointed out that there was no dispute about issuance of
cheque, or any agreement. Therefore, presumption available under
the N.I. Act automatically comes into play. He further pointed out
that there is no denial by accused about receipt of money. That
learned trial Court merely held that complainant failed to produce
account statement. Therefore, there is a good case in appeal and so
applicant seeks grant of leave to file appeal.
3. In answer to above, learned counsel for respondent pointed out
that applicant failed to prove that there was legally enforceable debt
{3} ALP 112 OF 2018
or any liability. That applicant failed to prove actual transaction
between applicant and accused. That learned trial Court has rightly
assigned reasons in paragraph nos.12, 13 and 14 of the judgment
and hence, according to him, the findings being just, legal and
proper, and applicant having failed to make out a case for attracting
case under Section 138 of the N.I.Act, said judgment cannot be
faulted at and so he prays to dismiss the application.
4. After hearing the submissions of both the sides, it is seen that
present applicant has instituted proceedings under Section 138 of the
N.I. Act bearing STC No.25 of 2015 alleging that applicant, a private
limited Company, entered into a contract with accused, who was a
contractor for sugarcane harvesting and transportation. Case set up
was that accused not only failed to render services as agreed but also
took advance amount and failed to repay it and instead issued a
cheque, which was drawn on Latur District Central Co-operative
Bank, but the same was dishonoured for want of funds and so after
issuing notice dated 24-03-2011, complaint seems to have been
instituted.
5. On prima facie going through the papers, it seems that in
support of its complaint, one Shriram s/o Gangaram Patil adduced
{4} ALP 112 OF 2018
evidence and documents like cheque memo, agreement exh.23,
postal receipt, acknowledgment receipt and Resolution of Company
are placed on record.
The defence raised by accused in the trial Court is misuse of
blank cheques obtained at the time of agreement. He has also raised
finger to the company for committing breach of agreement.
Fundamental defence is also that applicant / complainant failed to
discharge the burden of proving legally enforceable liability.
Though copy of agreement is placed at exh.23, it appears to be
undated. Secondly, witness on behalf of company namely Shriram
s/o Gangaram Patil does not seem to be in employment at the time of
agreement and therefore, question arises about his personal
knowledge about alleged transaction between complainant Company
and accused. This witness in cross-examination was unable to throw
light about exact liability. Complainant Company did not place on
record any document of financial transaction inspite it to be
registered under Companies Act.
6. When objection is raised about financial transaction, then apart
from cheque, it is incumbent upon complainant to demonstrate and
establish through record existence of transaction as well as liability.
{5} ALP 112 OF 2018
Precisely such documentary evidence has not been brought before
the Court. Therefore, merely an agreement between the parties
would not suffice, but legally enforceable debt existing at the time of
issuance of cheque is also to be established for attracting offence
under Section 138 of the N.I. Act. Resultantly, no fault can be found
in the appreciation of evidence by the learned JMFC. No case being
made out on merits to grant leave to file appeal, I proceed to pass
following order :
ORDER
Application for Leave to Appeal by Private Party
No.112 of 2018 stands rejected.
( ABHAY S. WAGHWASE )
JUDGE
SPT
