Bombay High Court
Dnyanoba Ramrao Yernale vs Rameshwar Babu Bharati And Another on 13 August, 2025
2025:BHC-AUG:21955
-1- ALP-91-2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO. 91 OF 2023
Dnyanoba S/o. Ramrao Yernale,
Age : 54 years, Occu. : Service,
R/o. L.I.C. Colony, Latur,
Tq. & Dist. Latur. ... Applicant
(Orig. Complainant)
Versus
1. Rameshwar S/o. Babu Bharati,
Age : 51 years, Occu. : Business,
Proprietor of Mauli Idli Center &
Ice-cream Parlor, R/o. Malang Complex,
Deshpande Colony, Old Ausa Road,
Latur, Tq. & Dist. Latur.
2. The State of Maharashtra. ... Respondents
......
Mr. Tukaram M. Venjane, Advocate for Applicant.
Mr. Vijay A. Dhakne, Advocate for Respondent No.1.
Mr. S. S. Dande, APP for Respondent No.2 - State.
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 08 AUGUST 2025
PRONOUNCED ON : 13 AUGUST 2025
ORDER :
1. Original complainant hereby seeks leave to file appeal
against judgment and order of acquittal dated 06.06.2023 passed
by learned J.M.F.C. Court Room No.2, Latur in S.C.C. No.2163 of
2018.
2. Learned counsel for applicant would submit that, due
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to friendly relations and financial difficulties, present respondent
no.1 borrowed Rs.8,00,000/- from applicant. In view of relations,
Rs.7,00,000/- were paid for a period from January - February to
June 2018. Respondent no.1 assured to repay the same. On
persuasion, respondent no.1 issued cheque dated 04.09.2018 and
14.09.2018 respectively. But on its presentation, the same were
dishonoured. It is further submitted that, as required under law,
legal notice was dispatched, but still there was no repayment and
that proceedings under section 138 of Negotiable Instruments Act
were initiated.
3. Learned counsel for applicant pointed out that, in
support of above case for offence under section 138 of N.I. Act,
complainant adduced his own evidence at Exh.18 and also adduced
evidence of witness Laxman. Apart from placing the cheque in
question on record, the bank memo, legal notice and postal
acknowledgment were also produced. In spite of availability of
overwhelming evidence and necessary ingredients for attracting
section 138 N.I. Act, full-proof case was made out. Learned counsel
pointed out that, presumption under section 139 of N.I. Act arose.
However, learned trial court acquitted the accused merely raising
doubt about financial capacity of complainant applicant to extend
hand loan. According to learned counsel, there is improper
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appreciation of evidence as well as law. Applicant has a good case
in appeal and hence he urges for leave.
4. Per contra, learned counsel for respondent no.1 would
submit that, there was no borrowing of hand loan as alleged. That,
there is no evidence either documentary or oral to that extent.
That, in fact complainant had no capacity to extend loan. He
further pointed out that, the complaint is vague and ambiguous,
and no exact details as to when and where hand loan was given and
in what form it was available, and therefore, learned trial court
rightly dismissed the complaint.
5. After hearing submissions of both sides and on going
through the papers, it is emerging that, S.C.C. No. 2163 of 2018
was instituted by present applicant on the premise that, due to
financial difficulties, respondent borrowed Rs.8,00,000/- and due
to friendly relations Rs.7,00,000/- was extended. However, as
pointed out, in the affidavit of complainant, it is merely stated that,
in between January and February 2018 Rs.2,00,000/- were paid
and Rs.5,00,000/- were paid in June 2018. The exact dates of
extension of hand loan, nor in what form loan was extended is
clarified by the complainant. For drawing presumption under
section 139 of N.I. Act, it is expected of complainant to
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demonstrate and establish legally enforceable debt.
6. In view of above discussed material, complaint is non
specific. Moreover, cross of complainant does go to show that he is
a teacher by profession and has no other source and means to
extend such huge loan. He admitted regarding receipt of salary of
Rs.40,000/- per month and earning Rs.20,000/- per year from
agriculture. Complainant admitted that he resides in a rented
premises. As stated above, what was the source to extend
Rs.7,00,000/- is not demonstrated. For above reasons, learned trial
court rightly dismissed the complaint.
7. Oral prayers are also made that matter may be
remanded back for retrial for further reliance on documentary
evidence. Such prayer cannot be entertained. With available
quality of evidence on behalf of complainant, no purpose would be
served by granting leave. Hence, the following order is passed :
ORDER
(i) The leave is refused.
(ii) The application is rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
