Bombay High Court
Hanmant S/O. Venkatrao Kawtikwar vs Sridhar S/O. Narayanrao Mangulkar And ... on 23 January, 2024
2024:BHC-AUG:1364
{1} ALP 261 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY
NO. 261 OF 2018
. Hanmant S/o. Venkatrao Kawtikwar
Age: 50 years, Occu.: Teacher,
R/o. Near Gajanan Mandir, Cidco,
New Nanded. ....Applicant
(Ori. Complainant)
Versus
1. Sridhhar S/o. Narayanrao Mangulkar
Age: 45 years, Occu.: Business,
R/o. ND - 42, Cidco, New Nanded.
2. Sunil S/o. Narayan Mangulkar
Age: 48 years, Occu.: Business,
R/o. Sandeep Medical, ND - 42,
Cidco, New Nanded. .....Respondents
.....
Advocate for Applicant : Mr. Sachin Joshi
Respondent no.1 served through Paper Publication.
Advocate for Respondent no.2 : Mr. A.G.Talhar
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18 JANUARY, 2024
PRONOUNCED ON : 23 JANUARY, 2024
ORDER :
1. Aggrieved by the judgment and order of acquittal passed by
the learned Judicial Magistrate, First Class, 3 rd Court, Nanded in
S.C.C. No.759 of 2012 acquitting respondents from offence under
{2} ALP 261 OF 2018
Section 138 of the Negotiable Instruments Act (for short "the NI
Act"), original complainant has moved instant application seeking
leave to file appeal to challenge the above judgment.
2. Learned Counsel for the applicant would submit that there was
a transaction of hand loan of Rs.24,00,000/-. That learned trial
Court has acquitted accused holding that applicant / complainant
failed to prove his own financial capacity to extend huge loan.
Further it is pointed out that even accused no.2 is acquitted holding
that he incurs no liability being mediator and merely on such count
complaint is dismissed and both accused are acquitted. According to
him, there is improper appreciation of evidence as well as law and
therefore, it is submitted that there being a good case in appeal on
merits, leave to challenge impugned judgment be granted.
3. While opposing the above application, learned counsel for
respondent no.2 would submit that there is correct appreciation of
evidence. That required case for allowing application was not at all
made out. That learned trial Court rightly held that for attracting
offence under Section 138 of the NI Act, cheque must have been
issued by the person from an account maintained by him. That there
{3} ALP 261 OF 2018
was no legally enforceable debt and the same was not established.
That moreover, it is pointed out that though applicant / complainant
claimed regarding issuing loan to the tune of Rs.24,00,000/-, he
failed to demonstrate his such financial capacity to extend said
amount by way of loan. That moreover, accused no.2 has no liability
whatsoever and therefore, learned trial Court has committed no error
in acquitting the accused persons and he prays to dismiss the appeal.
4. After hearing submissions of both sides and after going
through record and impugned judgment, it transpires that
proceedings under Section 138 of the NI Act were instituted by
present applicant contending that an amount of Rs.24,00,000/- is
due towards accused persons. When amount was demanded, only
Rs.11,00,000/- was agreed to be paid and there is agreement to that
extent. Towards repayment, cheque was issued to the tune of
Rs.3,79,000/-, but on its presentation it was returned dishonoured.
Demand notice was despatched, but it was refused and therefore,
proceedings under N.I.Act were initiated.
5. It prima facie seems that in support of his case, complainant
has examined himself, one witness namely Sudhir Devidasrao
{4} ALP 261 OF 2018
Damkondekar, who was Bank official and one Pandri Govindrao
Shinde, who was said to be party to the agreement. Documents like
cheque, bank memo, postal receipt etc. are also placed on record.
6. Defence set up in the trial Court was regarding denial of
issuance of cheque and signature over it. However, presentation of
cheque and its dishonour is proved. The question is whether
complainant established extension of the loan to the tune of
Rs.24,00,000/-. Complaint prima facie shows that complainant is
teacher by profession. Defence questioned his very financial capacity
to extend huge loan. Complainant in above backdrop, took a stand
that he has agricultural land. Therefore, it was expected of him to
demonstrate his package as well as agricultural income earned from
it, but he failed to demonstrate the same by adducing any oral or
documentary evidence. It is difficult to accept that with occupation
as a teacher and in absence of income from other source or income
tax returns, he had financial capacity to extend loan to the tune of
Rs.24,00,000/-. Even his complaint on prima facie examination
shows that for what purpose loan was demanded and forwarded and
when, all particulars to that extent are patently missing from the
complaint and affidavit. Therefore, when complainant prima facie
{5} ALP 261 OF 2018
failed to establish very aspect of extension of loan or legally
enforceable liability, case cannot be accepted and further action
cannot be taken even if there is presumption under Sections 118 and
139 of the Negotiable Instruments Act. Defence seems to have
rebutted the presumption. Therefore, taking such material into
consideration, no fault can be found in the appreciation of evidence
by the learned trial Court. No good ground is made out to grant
leave as prayed for. Hence, following order is passed :
ORDER
Application for Leave to Appeal by Private Party
No.261 of 2018 is rejected.
( ABHAY S. WAGHWASE )
JUDGE
SPT
