Bombay High Court
Sumant S/O. Ramhari Bikkad vs Anna S/O. Govardhan Tandale on 24 January, 2024
2024:BHC-AUG:1508
-1- ALP.140.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT.PARTY NO. 140 OF 2019
Sumant S/o. Ramhari Bikkad,
Age : 41 years, Occu. : Agril.,
R/o. Naholi, Tq. Kaij, Dist. Beed. ... Applicant.
(Orig. Complainant)
Versus
Anna S/o. Govardhan Tandale,
Age : 31 years, Occu. : Service,
R/o. Tandlyachiwadi, Tq. Kaij,
Dist. Beed. ... Respondent.
(Orig. Accused)
...
Mr. Akash D. Gade, Advocate for Applicant.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 19th JANUARY, 2024
PRONOUNCED ON : 24th JANUARY, 2024
ORDER :
1. Original complainant, who instituted proceedings
under section 138 of Negotiable Instruments Act, 1881, is
aggrieved by the judgment and order of acquittal passed by learned
Judicial Magistrate First Class, Kaij, District Beed in Summary
Criminal Case No.165 of 2014, dated 27.05.2019 and is hereby
intending to file appeal and thus seeking leave of this court.
2. Learned counsel would submit that, respondent
accused had agreed to purchase truck for consideration of
Rs.3,67,000/- and an agreement was also reached. That, amount of
-2- ALP.140.2019
Rs.35,000/- was also paid by way of earnest amount and further
time to time Rs.35,800/- were also paid towards the dues. That,
3,86,000/- was due including interest. Accused issued three
cheques, but the cheque to the tune of Rs.2,50,000/- was returned
dishonoured, and therefore, accused was put to notice to pay
cheque amount, but he failed to pay the amount therefore
proceedings under section 138 of N.I. Act were initiated.
3. He further submitted that there was no dispute
regarding transaction. Notice was received, but was not replied.
Therefore, presumption came into play. False defence of cheque to
be stolen was taken. That, learned trial court unfortunately
accepted the said defence. According to learned counsel, there was
ample evidence about transaction, issuance of cheque, and legally
enforceable debt. Accused failed to rebut the presumption, but
learned trial court acquitted the accused, and therefore, finding a
fault with the appreciation of evidence by the learned trial court,
he prays for leave to question the same.
4. This matter is of 2019. Record shows that, respondent
is served, but is not appearing and contesting the application. In
spite of last chance being granted as none remained present to
answer, matter is taken up for order.
-3- ALP.140.2019
5. After considering the submissions, it seems that,
present proceedings instituted under section 138 of N.I. Act,
alleging dishonour of cheque (Exh.34). Accused took up stand that
cheques in question were stolen. But, no report to that extent
seems to have been lodged.
6. However, complainant has to show that there was
legally enforceable debt. Learned counsel for applicant had
submitted that, there is an agreement between the parties.
However, it appears that, the said agreement was between
complainant on one hand and one Sudam Tandale. Resultantly,
there is no privity of contract between complainant and present
accused respondent. There seems to be clear admission to this
extent at the end of complainant while under cross. Hence, issue of
legally enforceable debt and liability arises. Precisely, for the same
reasons, learned trial Court has acquitted the accused.
Resultantly, no fault can be found in the impugned
judgment so as to grant leave as prayed for. Hence, I proceed to
pass following order :
ORDER
The application is hereby rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
