Bombay High Court
Jaibharat Oil Mill Thr. Its Proprietor ... vs Manish S/O Surajmal Toshniwal on 5 September, 2024
1 appa1115.22+O.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.1115 OF 2022
IN
CRIMINAL APPEAL NO.9771 OF 2022
(Jaibharat Oil Mill thr. its Prop. Shri Dhanraj s/o Radhakisan Tawari Vs. Shri Manish
s/o Surajmal Toshniwal)
CRIMINAL APPLICATION (APPA) NO.1116 OF 2022
IN
CRIMINAL APPEAL NO.9769 OF 2022
(Jaibharat Oil Mill thr. its Prop. Shri Dhanraj s/o Radhakisan Tawari Vs. Shri Manish
s/o Surajmal Toshniwal)
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Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
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Mr. N. R. Bhishikar, Advocate for Applicant.
Mr. P. K. Mohta, Advocate for Non-Applicant.
CORAM: URMILA JOSHI PHALKE, J.
DATE: 5th SEPTEMBER, 2024.
1. Both the applications are filed by the applicant
for grant of leave along with the appeal challenging the
order of acquittal passed in SCC Nos.761/2015 and
762/2015.
2. Heard learned counsel Mr. Bhishikar for the
applicant who pointed out from the cross-examination of the
accused who examined himself in support of his defence
that he has admitted that the complainant is the owner of
Jai Bharat Oil Mill. He also admitted the transaction with
the said Jai Bharat Oil Mill. He further invited my attention
to the further cross-examination wherein the non-applicant
has intended that he has issued eight cheques towards the
2 appa1115.22+O.odt
said transaction and it was decided that if he pays the
amount through RTGS then the cheques issued in favour of
the complainant to be cancelled. His further cross-
examination shows that he admitted that on 17.02.2014
amount of Rs.7,84,610/- was duped from him to the
complainant. The admission further shows that he has no
documentary evidence to show that he has repaid the
amount by RTGS. On the basis of this cross-examination the
learned counsel submitted that the observation of the trial
Court to the extent of there was no legal and enforceable
debt and cheques were not issued in-discharge of the legal
and enforceable debt is not sustainable. Thus, he pointed
out that he has very arguable points in the present appeal,
and therefore, leave is granted.
3. Learned counsel for the non-applicant strongly
opposed the said application and submitted that the learned
trial Court has rightly considered that the complainant was
not holder in due course and it is a possible view taken by
the trial Court and therefore, the application for grant of
leave deserves to be rejected.
4. After hearing the learned counsel for the
applicant and learned counsel for the non-applicant,
perused the impugned judgment as well as the deposition of
the accused from which the learned counsel for the
applicant pointed out that he has admitted that some
amount was due from him and also admitted that cheques
were issued. The admission further shows that he has no
documentary evidence to show that he has paid amount in
3 appa1115.22+O.odt
cash. Thus, from this cross-examination learned counsel for
the applicant has made out a case for grant of leave, as he
has many arguable points in the present appeal. In view of
that, both these applications deserves to be allowed.
Accordingly, I proceed to pass following order:
i] Criminal Application Nos.1115/2022 and
1116/2022 are allowed. Leave is granted
to the applicant to prefer an appeal.
CRIMINAL APPEAL STAMP NO.9771/2022 AND CRIMINAL
APPEAL STAMP NO.9769/2022:
1. Appeals be registered.
2. Mr. P. K. Mohta, learned counsel waives service
of notice on behalf of the respondent.
3. The appeals can be disposed of at the admission
stage.
4. Call for record and proceedings from the trial
court.
5. In the meantime, learned counsel for the
appellant/applicant shall file private paper-book within four
weeks.
6. Stand over after four weeks.
(URMILA JOSHI-PHALKE, J.)
NSN
Signed by: Mr. N.S. Nikhare
Designation: PA To Honourable Judge
Date: 06/09/2024 18:28:31
