Bombay High Court
Renukadas S/O. Radhakrishna Pujari vs Shaikh Musaib S/O. Shaikh Lal Qureshi on 29 January, 2024
2024:BHC-AUG:1757
{1} ALP 143 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY
NO. 143 OF 2018
Renukadas S/o. Radhakrishna Pujari
age: 46 years, Occu.: Business,
R/o. Vitthal Mandir, Dhavni Mohalla,
Aurangabad. ....Applicant
Versus
Shaikh Musaib s/o. Shaikhlal Qureshi
Age: 30 years, Occu.: Business,
R/o. Plot No.40, Section N-11,
Cidco, Near Mughal Art Place,
Aurangabad. .....Respondent
(Orig. Accused)
.....
Advocate for Applicant : Mr.Ajit D. Kasliwal
Advocate for Respondent : Mr.G.R.Syed
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 15 JANUARY, 2024
PRONOUNCED ON : 29 JANUARY, 2024
ORDER :
1. Dissatisfied by the judgment and order of acquittal passed by
the learned Judicial Magistrate First Class, Aurangabad in SCC
No.6249/2011, applicant / original complainant is intending to file
appeal and hence by way of instant application, he is seeking leave.
{2} ALP 143 OF 2018
2. Learned Counsel for applicant submitted that transaction was
proved, issuance of cheque and signature over it is not denied and
therefore, presumption under Section 118 of the Negotiable
Instruments Act (NI Act) was available. Respondent accused did not
rebut the presumption. He did not step in the witness box. However,
learned trial Judge still acquitted the accused. Therefore, there is
improper appreciation of evidence and hence, he seeks leave to file
appeal.
3. Learned Counsel for respondent would submit that applicant
failed to prove very transaction. There was no legally enforceable
debt. Consequently, he justifies and supports the acquittal.
4. Perused the papers and impugned judgment. Case set up by
complainant is that out of cordial relations, accused approached
complainant with proposal for purchasing landed property and
assured to contribute at his end also. According to applicant, he paid
Rs.5,50,000/- in cash from the saving account and remaining
Rs.2,50,000/- from the amount lying with the applicant at that time
and thereby he made payment. Accused assured to return
Rs.7,21,000/- and towards repayment, he issued cheque, but it was
{3} ALP 143 OF 2018
dishonoured and hence proceedings under Section 138 of the NI Act
was initiated.
5. Defence of accused is that he was mentally ill and taking
disadvantage of the same, cheque was forcibly taken. It seems that
in support of such defence, accused has adduced evidence of one
Soheb Shaikh Lal Qureshi and also placed on record document
exh.86 i.e. medical certificate. It seems that applicant, during his
cross-examination, admitted treatment of accused by Dr.Qadri.
6. However, considering the nature of proceedings, it is important
for applicant to demonstrate that there was legally enforceable debt
i.e. at the time of issuance of cheque in question. It is further duty of
applicant / complainant to establish foundational facts regarding
agreement reached between them regarding purchase of landed
property. Apparently, except bald statement in complaint, there is
nothing in black and white to show that there was some transaction
between them regarding purchase of landed property. Even details of
landed property, which was proposed to be transacted, have not been
provided by applicant. Resultatnly, evidence of applicant is falling
short regarding he giving accused part amount by way of cash and
{4} ALP 143 OF 2018
part amount by way of cash transaction. Resultantly as there is
fragile and weak evidence about existence of legally enforceable
debt, case of applicant cannot be accepted.
7. Therefore, taking into account the quality of evidence from
applicant's side, no fault can be found in the judgment and order
passed by trial Court. No case is made out on merits so as to grant
leave as prayed for. Hence I proceed to pass following order.
ORDER
Application for Leave to Appeal by Private Party No.143 of
2018 stands rejected.
( ABHAY S. WAGHWASE )
JUDGE
SPT
