Bombay High Court
Ajay Ramesh Bhavsar vs Chetan Kalusing Parmar on 25 January, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO.24 OF 2018
Ajay Ramesh Bhavsar,
Age : 48 years, Occu. : Business,
R/o. Dhadgaon, Tq. Akarani,
Dist. Nandurbar. ... Applicant
(Orig. Complainant)
Versus
Chetan Kalusing Parmar,
Age : 42 years, Occu. : Service,
R/o. Dhadgaon, Tq. Akarani,
Dist. Nandurbar. ... Respondent
(Orig. Accused)
...
Mr. Kunal Kale, Advocate for Applicant.
Mr. Gajendra Jain, Advocate for Respondent sole.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 22nd JANUARY, 2024
PRONOUNCED ON : 25th JANUARY, 2024
ORDER :
1. Feeling aggrieved by the judgment and order of
acquittal passed by learned Judicial Magistrate First Class,
Dhadgaon, District Nandurbar, dated 27.06.2012, acquitting
respondent from the offence under section 138 of Negotiable
Instruments Act, 1881, original complainant is intending to prefer
appeal and hence instant leave application.
2. Learned counsel for applicant would submit that, there
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was clear transaction between complainant and accused. Accused
used to collect amount regularly towards deposit by way of Pigmy
agent. Account was also said to be opened in the name of son of
complainant. However, when there was need, complainant went to
withdraw the amount, but the account was closed and there was no
amount in the said account. Learned counsel submitted that,
complaint was also lodged to Co-operative department. Towards
repayment accused had also issued cheque, but it was dishonoured
and therefore, proceedings were initiated, but learned trial Judge
misconstrued the legal provisions, failed to consider the evidence
in its proper perspective and acquitted the accused. That, there is
a good case on merits in appeal and hence he seeks leave.
3. Per contra, learned counsel for respondent would
submit that, there was no legally enforceable debt. Complainant
failed to establish that cheque was issued towards legally
enforceable debt and therefore, learned trial Judge rightly
acquitted accused, hence he prays to refuse the leave sought by
complainant.
4. On hearing both sides and on going through the papers,
it seems that accused was a Pigmy agent and on his approach
complainant opened daily savings account in the name of his son.
-3- ALP.24.2018
Case set up that minimum Rs.100/- were handed over by accused
daily and thereby total amount of Rs.1,13,000/- were handed over
to accused upto 2005. That, as complainant was in need, he went
to operate the account in 'Nandurbar Zilha Sarkari Nokranchi
Sahakari Bank Ltd.", but he realized that there was no balance and
the account was closed. According to complainant, the inquiry
revealed that, without his permission accused had withdrawn and
closed the account by forging signatures. Complaint to that regard
lodged with Co-operative department. That, thereafter accused
issued cheque, but it was dishonoured. Hence the proceedings.
5. Case set up by respondent is of denial any financial
transaction or issuance of cheque towards legally enforceable debt.
6. Considering the nature of proceedings, primary burden
is on the complainant to establish that there was transaction
between complainant and accused and he owed amount towards
accused and towards legally enforceable debt, instrument was
drawn. Prima facie it appears that, there are no written documents
except one passbook, however the said passbook (Exh.36) does not
bear number, date or signature of accused and there is admission
to that extent in cross. Resultantly, when complainant failed to
establish money transaction, issue of repayment or existence of
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legally enforceable debt crops up. If there is allegation of
misappropriation, there is a distinct remedy. Proceedings cannot
be initiated under section 138 N.I. Act, unless it is demonstrated
that there was financial transaction and cheque in question was
issued towards its repayment. Consequently, case to that extent
not being made out, no fault can be found in the findings of learned
trial court that no offence of 138 of N.I. Act being made out,
accused deserves to be acquitted.
7. Findings no merit in the application in the light of
above discussion, prayers raised herein cannot be granted.
8. The application stands rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
