Bombay High Court
Prashant S/O. Himmatrao Jawarkar vs Dr. Ganesh S/O. Pandurang Vasu on 18 November, 2025
2025:BHC-NAG:12304
Judgment Cr.APPEAL-320-2017
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 320 OF 2017
...
Prashant s/o. Himmatrao Jawarkar,
Aged about 44 years, Occ.: Business,
R/o. Sukhada Apartment, Sawant wadi,
Ranpise Nagar, Akola, Distt. Akola.
... APPELLANT
--VERSUS--
Dr. Ganesh s/o. Pandurang Vasu,
Aged Major, Occu: Medical Practitioner,
R/o. Om Sai Medicals,
Behind S.T. stand, Mutthe layout,
Siddhivinayak Bal Rugnalaya Critinal Care,
Buldana.
... RESPONDENT
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Mr. N.B. Jawade, Advocate for the Appellant.
None for the Respondent.
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CORAM : M.M. NERLIKAR, J.
PIYUSH MAHAJAN
Judgment Cr.APPEAL-320-2017
2
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Judgment is reserved on 11/11/2025 .
Judgment is pronounced on 18/11/2025 .
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JUDGMENT
Heard the learned counsel for the appellant.
2. Admit.
3. The present appeal challenges the judgment and
order dated 16/03/2017 passed by the learned Judicial
Magistrate, First Class, Court No.5, Akola, wherein, the accused
was acquitted for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881, however, the appellant
was directed to pay compensation of Rs.25,000/- to the accused
under Section 250(2) of the Code of Criminal Procedure, 1973,
and in default of payment of compensation amount the
appellant was directed to undergo simple imprisonment for 15
days under Section 250(3) of the Code of Criminal Procedure.
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Judgment Cr.APPEAL-320-2017
4. This Court by an order dated 07/07/2017, rejected
the application seeking leave to file appeal to the extent of
acquittal of the non-applicant/accused. However, the
application was allowed only to the extent of challenging the
order giving a direction to the applicant/complainant to give
compensation to the non-applicant/accused. Accordingly,
appeal was admitted only to the extent of granting
compensation to the present non-applicant/accused. It further
appears that ad-interim relief was granted in favour of the
appellant by the same order, i.e., order dated 07/07/2017.
5. I have heard the learned counsel for the appellant,
however, none appears for the respondent.
6. The learned counsel for the appellant submits that
the Judicial Magistrate First Class, Akola, erred in granting
compensation as mere failure to prove the case by itself is not
sufficient to direct payment of compensation under Section 250
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Judgment Cr.APPEAL-320-2017
of the Cr.P.C. He further submits that the signature on the
cheque was not disputed by the respondent. The cheque
bearing No.232800 was issued by the respondent and when it
was presented it was dishonored. Thereafter, a return memo of
State Bank of India was also placed on record, not only that,
copy of demand notice, postal acknowledgment, postal receipt,
reply of accused and receipts were placed on record in order to
prove the case, however, if the complainant failed to prove the
case that by itself does not give rise to grant of compensation by
the complainant. He further submits that the return memo was
placed on record of drawee bank, i.e., State Bank of India,
however, he submits that the explanation was given by the
complainant by stating that cheque at Exh.20 was forwarded by
the Nishant Pat Sanstha to their authorized Bank, i.e., Peoples
Co-operative Bank Ltd. The Peoples Co-operative Bank is linked
with Nishant Pat Sanstha. Moreover, the date mentioned on
the return memo, i.e., Exh.21 of the Drawee bank of SBI is
written in Marathi as 24/03/2023, and accordingly, submits
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Judgment Cr.APPEAL-320-2017
that what endorsement has been put at the back side of the
cheque is not in the hands of the complainant and submits that
the complainant has duly proved that the cheque has been
signed by the respondent herein. He further submits that to
invoke provisions of Section 250 of Cr.P.C., the Court has to see
whether there are reasonable ground for making the accusation
against the accused or not. However, it cannot be equated with
the acquittal on the ground of not proving the case by the
complainant / informant. Accordingly, he submits that the Trial
Court has wrongly invoked Section 250 of the Cr.P.C. and failed
to apply Section 250 in its true perspective. He further submits
that the Trial Court has erred in directing grant of
compensation by the appellant to the respondent and ultimately
prayed to allow the Appeal.
7. Though on behalf of respondent, Mr. Deshpande, put
in his appearance, but during the course of hearing he
remained absent. The matter pertains to the year 2017. The
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Judgment Cr.APPEAL-320-2017
original proceedings are of 2013, and therefore, I though it fit
to proceed with the matter in the absence of learned counsel for
the respondent.
8. After going through the record and proceedings and
after hearing the learned counsel for the appellant, it could be
gathered from the record that the grounds on which the
compensation was awarded to the respondent, which is to be
paid by the complainant under Section 250 of Cr.P.C. are that
"no ground appears to conclude that the complainant's case has
some truth in his case, except to collect money from the
accused.", "complainant has initiated the proceeding without
any reasonable ground as there was absence of return memo,
the endorsement dtd. 23/03/2013 of a stranger bank on the
back side of the cheque, created doubt.", and "by initiating such
proceeding without having justified documents, the accused has
abused the process of court. He has not only consumed the long
period of the Trial Court, but also of the Hon'ble Sessions &
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Judgment Cr.APPEAL-320-2017
High Court." Therefore, the Trial Court accordingly granted
Rs.25,000/- as compensation to the accused.
9. It is necessary to reproduce Section 250 of Cr.P.C.
which reads thus:-
"250. Compensation for accusation without
reasonable cause.
1. If, in any case instituted upon complaint or
upon information given to a police officer or to a
Magistrate, one or more persons is or are accused before a
Magistrate of any offence triable by a Magistrate, and the
Magistrate by whom the case is heard discharges or acquits
all or any of the accused, and is of opinion that there was
no reasonable ground for making the accusation against
them or any of them, the Magistrate may, by his order of
discharge or acquittal, if the person upon whose complaint
or information the accusation was made is present, call
upon him forthwith, to show cause why he should not pay
compensation to such accused or to each or any of such
accused when there are more than one; or, if such person
is not present, direct the issue of a summons to him to
appear and show cause as aforesaid.
2. The Magistrate shall record and consider any
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Judgment Cr.APPEAL-320-2017
cause which such complainant or informant may show,
and if he is satisfied that there was no reasonable ground
for making the accusation, may, for reasons to be
recorded, make an order that compensation to such
amount, not exceeding the amount of fine he is
empowered to impose, as he may determine, be paid by
such complainant or informant to the accused or to each or
any of them.
3. The Magistrate may, by the order directing
payment of the compensation under sub-section (2),
further order that, in default of payment, the person
ordered to pay such compensation shall undergo simple
imprisonment for a period not exceeding thirty days.
4. When any person is imprisoned under sub-
section (3), the provisions of Sections 68 and 69 of the
Indian Penal Code (45 of 1860) shall, so far as may be,
apply.
5. No person who has been directed to pay
compensation under this section shall, by reason of such
order, be exempted from any civil or criminal liability in
respect of the complaint made or information given by
him:
Provided that any amount paid to an accused
person under this section shall be taken into account in
awarding compensation to such person in any subsequent
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Judgment Cr.APPEAL-320-2017
civil suit relating to the same matter.
6. A complainant or informant who has been
ordered under sub-section (2) by a Magistrate of the
second class to pay compensation exceeding one hundred
rupees, may appeal from the order, as if such complainant
or informant had been convicted on a trial held by such
Magistrate.
7. When an order for payment of compensation to
an accused person is made in a case which is subject to
appeal under sub-section (6), the compensation shall not
be paid to him before the period allowed for the
presentation of the appeal has elapsed, or, if an appeal is
presented, before the appeal has been decided; and where
such order is made in a case which is not so subject to
appeal the compensation shall not be paid before the
expiration of one month from the date of the order.
8. The provisions of this section apply to
summons-cases as well as to warrant-cases."
So as to interpret the aforesaid provision, it would be
useful to refer to the judgment delivered by the Supreme Court
in the case of State of Rajasthan VS Jainudeen Shekh and
Another, (2016) 1 SCC 514. Paragraph Nos. 8 to 14 are
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Judgment Cr.APPEAL-320-2017
reproduced below:-
"8. Section 250 of the Code confers powers on the
Magistrate to grant compensation on certain conditions
being satisfied. A procedure has been engrafted in the said
provision. There are certain cases in which the learned
Sessions Judge can grant compensation. In this context we
may refer with profit to the decision in Daulat Ram v.
State of Haryana1. The appellant therein was convicted by
the learned Additional Sessions Judge under Section 25 of
the Arms Act, 1959 read with Section 6(1) of the Terrorist
& Disruptive Activities (Prevention) Act, 1985 (for short,
'TADA'). The defence taken by the accused was that he had
been falsely implicated at the instance of one Hans Raj
Lambardar of the village. He had examined four witnesses
in his defence. He was acquitted under Section 6 of the
TADA but convicted under Section 25 of the Arms Act. The
Court analyzing the evidence on record and taking note of
the plea of the defence, dislodged the judgment of
conviction and while doing so, this Court opined that:-
"....It is unfortunate that the police officers, namely,
Head Constable, Randhir PW 2 and the then Head
Constable Jai Dayal, PW 3 foisted a false case on the
appellant for reasons best known to them, which is a
very serious matter. We are informed that the
appellant was in custody for a few days in connection
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Judgment Cr.APPEAL-320-2017
with this case. We, therefore, direct the respondent-
State to pay a sum of Rs. 5000 as compensation to the
appellant within two months. The respondent-State
may however recover the said amount from the police
officials, Randhir PW 2 and Jai Dayal, PW 3 (Rs. 2500
each), who are responsible for false implication of the
appellant."
9. In Mohd. Zahid v. Govt. of NCT of Delhi 2 , the
appellant had preferred an appeal under Section 19 of the
TADA. The designated court had found him guilty and
convicted him for the offence under Section 5 of TADA and
sentenced him to suffer rigorous imprisonment for five
years and to pay a fine of Rs.1,000/- and, in default of
payment of fine, to undergo rigorous imprisonment for
two months more. The Court allowed the appeal and
recorded an order of acquittal. In course of analysis, the
Court has opined that certain documents had been
interpolated, the evidence of certain witnesses was
absolutely false and that the appellant therein made a
victim of prolonged illegal incarceration due to
machination of PWs 5 and 6 and other police personnel
and accordingly directed payment of Rs.50,000/- as
compensation.
10. In this context reference to certain other
decisions would be appropriate. In State, represented by
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Judgment Cr.APPEAL-320-2017
Inspector of Police and others v. N.M.T. Joy Immaculate 3 ,
a three-Judge Bench was dealing with the judgment and
order passed by the learned Single Judge of the High Court
of Madras in a Criminal Revision which was allowed and
revision was disposed of with certain directions. The High
Court had granted Rs.1 lakh compensation on the basis of
an affidavit. G.P. Mathur, J., speaking for the learned Chief
Justice and himself, after quashing the order of the High
Court has opined that:-
" The High Court has also awarded Rs. 1
lakh as compensation to the accused on the ground
that she was illegally detained in the police station
and the police personnel committed acts of
molestation, obscene violation, etc. It is noteworthy
that after investigation, the police has submitted
charge-sheet against accused Joy Immaculate. Her
application for bail was rejected by the learned
Sessions Judge and thereafter by the High Court on
18-1-2002 prior to the decision of the revision. There
is absolutely no justification for awarding
compensation to a person who is facing prosecution
for a serious offence like murder even before the trial
has commenced. This direction, therefore, deserves to
be set aside."
Dr. A.R. Lakshmann, J. in his concurring
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Judgment Cr.APPEAL-320-2017
opinion has laid down:-
"Above all, the learned Judge has committed a grave
error in awarding a compensation of Rs 1 lakh on the
ground that the police personnel committed acts of
obscene violation, teasing the respondent herein. The
learned Judge has relied upon only on the basis of the
affidavit filed in the case for coming to the conclusion
and also on the basis of the assumption that the
respondent was not involved in the incident which
will foreclose the further enquiry ordered by the
learned Judge in the matter. There is no justification
for awarding compensation to a person who is facing
prosecution for a serious offence like murder even
before the trial has started."
11. In this context, we may usefully refer to a two-
Judge Bench decision in Hardeep Singh v. State of Madhya
Pradesh4 . In the said case, the appellant was engaged in
running a coaching centre where students were given
tuition to prepare them for entrance tests for different
professional courses. The appellant was arrested and a
case under Section 420 read with Section 34 IPC and other
sections was instituted. He was brought to the police
station in handcuffs and his photographs in handcuffs
appeared in the local newspapers. The trial went on for
several years and eventually, he was acquitted after 12
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Judgment Cr.APPEAL-320-2017
years. Thereafter he filed a complaint before the
Magistrate which was dismissed for lack of sanction. The
High Court being moved had held that complaint was not
maintainable and dismissed the same in limini. Thereafter,
the victim moved the Government for grant of sanction
under Section 197 CrPC for prosecuting the Collector and
other government servants which was refused. The said
order of refusal came to be assailed in W.P. No.4777 of
2007. The writ petition was dismissed by the High Court.
On an intra-court appeal preferred, the High Court
dismissed the same.
12. Be it stated, after the acquittal, the appellant
had filed writ petition no. 4368 of 2004 contending, inter
alia, that he was taken to the police station and was kept
there in custody in the night handcuffed by the police
without there being any valid reason and his photographs
in handcuffs in daily newspapers were published as a
consequence of which his elder sister who loved him like a
son, died due to shock. It was also contended that the
prosecution knew from the beginning that the cases
registered against him were false and it purposefully
caused delay in conclusion of the trial causing great harm
to his dignity and reputation and violating his fundamental
right to speedy trial guaranteed under Article 21 of the
Constitution. A learned Single Judge of the High Court had
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Judgment Cr.APPEAL-320-2017
admitted the writ petition on the limited question of grant
of compensation to the appellant for the delay in
conclusion of the criminal case against him. Another Single
Judge who finally heard the matter opined that there was
no case for compensation. In intra-court appeal, the
Division Bench reversed the same and granted
compensation of Rs.70,000/- which was enhanced by this
Court to Rs.2 lakhs. The analysis made by the Division
Bench which has been approved by this Court is to the
following effect:-
" The Division Bench further held that there
was no warrant for putting the appellant under
handcuffs. His handcuffing was without justification
and it had not only adversely affected his dignity as a
human being but had also led to unfortunate and
tragic consequences."
And while enhancing the compensation, the
Court held that:-
"..... we find that in the light of the findings arrived at
by the Division Bench, the compensation of Rs 70,000
was too small and did not do justice to the sufferings
and humiliation undergone by the appellant."
13. Regard being had to the aforesaid enunciation
of law, the factual matrix of the case at hand is required to
be appreciated. On a close scrutiny of the judgment of the
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Judgment Cr.APPEAL-320-2017
learned trial Judge, it is evident that he has been guided
basically by three factors, namely, that the State
Government has not established Forensic Science
Laboratories despite the orders passed by this Court; that
there has been delay in getting the seized articles tested;
and that the seizing officer had not himself verified by
using his experience and expertise that the contraband
article was opium. As far as the first aspect is concerned, it
is a different matter altogether. As far as the delay is
concerned that is the fulcrum of the reasoning for
acquittal. It is apt to note that the police while patrolling
had noticed the accused persons and their behaviour at
that time was suspicious. There is nothing on record to
suggest that there was any lapse on the part of the seizing
officer. Nothing has been brought by way of evidence to
show that the prosecution had falsely implicated them.
There is nothing to remotely suggest that there was any
malice. The High Court, as is noticed, has not applied its
mind to the concept of grant of compensation to the
accused persons in a case of present nature. There is no
material whatsoever to show that the prosecution has
deliberately roped in the accused persons. There is no
malafide or malice like the fact situation which are
projected in the case of Hardeep Singh (supra). Thus, the
view expressed by the learned trial Judge is absolutely
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Judgment Cr.APPEAL-320-2017
indefensible and the affirmance thereof by the High Court
is wholly unsustainable.
14. In view of the foregoing analysis, the appeal is
allowed and the order of the trial Judge granting
compensation and that of the High Court giving stamp of
approval to the same are set aside. "
It would also be useful to refer to the judgment of the
Supreme Court in the case of Indian Oil Corpn. VS NEPC India
Ltd. And Others, (2006) 6 SCC 736, Paragraph No.14 is
reproduced below:-
"14. While no one with a legitimate cause or
grievance should be prevented from seeking remedies
available in criminal law, a complainant who initiates
or persists with a prosecution, being fully aware that
the criminal proceedings are unwarranted and his
remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law. One positive step
that can be taken by the courts, to curb unnecessary
prosecutions and harassment of innocent parties, is to
exercise their power under Section 250 CrPC more
frequently, where they discern malice or frivolousness
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Judgment Cr.APPEAL-320-2017
or ulterior motives on the part of the complainant. Be
that as it may."
From the aforesaid judgments, the following points
can be culled out so as to invoke Section 250 Cr.P.C. :-
1] That there is no material against the accused
to initiate the proceedings;
2] It is necessary to show that the complainant
has initiated the proceedings against the accused
maliciously, i.e., with malafide intention or malice
meaning thereby there should be malicious prosecution;
or
3] The proceedings initiated must be frivolous or
initiated with ulterior motive on the part of the
complainant.
10. Taking into consideration the exposition of law of the
Supreme Court and after considering Section 250 of Cr.P.C., it
is necessary to appreciate the basic facts of the present case.
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Judgment Cr.APPEAL-320-2017
S.C.C. No. 2110/2013 was registered by the present appellant -
Prashant Himmatrao Jawarkar against the present respondent -
Dr. Ganesh Pandurang Vasu for the offence punishable under
Section 138 of the N.I. Act. It is alleged that the respondent is a
medical practitioner / Doctor. It is further alleged that the
complainant and accused are well acquainted with each other.
The respondent was in need of money, and therefore, a request
was made to complainant to a give hand loan of Rs.3,00,000/-.
Considering the relationship between them, the complainant
gave a hand loan of Rs. 3,00,000/-. The accused / respondent
assured to complainant / appellant that he will repay the said
hand loan as early as possible, and accordingly, the respondent
towards discharge of the said existing legal liability issued a
cheque on 20/03/2013 bearing No. 232800 of Rs.3,00,000/-
drawn on State Bank of India in favour of the complainant.
When the cheque was presented for encashment through his
Banker - Nishant Multi State Co-operative Credit Society Ltd.,
Akola Branch, Akola on 22/03/2013, the said cheque
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Judgment Cr.APPEAL-320-2017
dishonoured and was returned unpaid by the SBI by its cheque
return memo dated 22/03/2023 for the reason "Funds
Insufficient". Accordingly, the information was received by the
complainant on 22/03/2023 itself. It further appears that this
fact was informed to the respondent / accused, however, the
respondent has not paid any heed. Accordingly, the appellant
issued legal notice through Advocate by R.P.A.D. on
20/04/2013 calling the accused to make the payment of cheque
amount within 15 days from the receipt of the said notice. The
said notice was received on 22/04/2013 by the respondent, but
the respondent failed to comply with the said notice, and
accordingly, the complaint was filed for the offence punishable
under Section 138 of the N.I. Act.
11. It appears from the record that evidence was
recorded by the Trial Court. The defence of the respondent /
accused was that the accused / respondent was not acquainted
with the complainant. The complainant has misused the cheque
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Judgment Cr.APPEAL-320-2017
by joining hands with his friend Vinod Meshram. It further
appears that the respondent denied the fact that he has taken a
hand loan from the appellant and he has also denied issuance
of cheque in favour of the appellant. It is his further defence
that he is acquainted with one Vinod Meshram who was in need
of money, and therefore, he has availed loan facility for Vinod
Meshram from Akshay Vyavsaik Nagri Sahakari Pat Sanstha
Ltd., Akola. For availaing the loan he has mortgaged the
property of Vinod Meshram and for the security purpose, the
respondent has kept the blank cheque of SBI with the said Pat
Sanstha. The repayment was done by the Vinod Meshram
himself, however, after repayment of the loan, one of the blank
cheque was taken by Vinod Meshram which was misused in
collusion with the complainant, and accordingly, he has placed
reliance on the documents at Exh.61 to 75. Not only that, the
respondent has also examined one of the employee of the Pat
Sanstha, namely, Makarand Korranne. After going through the
entire evidence, it appears that the signature on the cheque was
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Judgment Cr.APPEAL-320-2017
not denied by the respondent. It is further to be noted that
witness, Makarand Korranne, who was the manager of Akshay
Vyavsaik Nagri Sahakari Pat Sanstha admitted that as per the
rules Pat Sanstha cannot take blank cheques from the
borrowers. It further appears from the evidence of Makarand
that seven cheques were returned to the respondent when he
was manager of the Pat Sanstha.
12. Now considering the above evidence, the only
question before me is whether there are reasonable grounds to
file the complaint by the complainant under Section 138 of the
N.I. Act against the respondent and whether the Trial Court is
justified in invoking Section 250 of the Cr.P.C. To answer this
some important factors are necessary to be taken into
consideration. The evidence on record goes to show that the
cheque bearing No.232800 at (Exh.20) is having signature of
the respondent, which is admitted in evidence by the
respondent. There is cheque return memo of SBI bank at
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Judgment Cr.APPEAL-320-2017
Exh.21, demand notice at Exh.22, Postal Acknowledgment at
Exh.23, Postal Receipt at Exh.24, reply of accused to the notice
at Exh.25 and some receipts at Exh.26 & 27. Therefore, all
these documents goes to show that cheque was having
signature of the respondent, which was presented to the
Nishant Pat Sanstha by the complainant. Therefore, the fact
remains that in order to proceed under Section 138 of the N.I.
Act, there are reasonable grounds.
13. It is also a matter of fact that the said cheque was
dishonored for "Insufficient funds". Further there was cheque
return memo of the SBI Bank, demand notice was served,
service of notice is also placed on record, therefore, there was
procedural compliance and as the cheque dishonoured, the case
was filed by the complainant due to the fact that respondent
has failed to repay the hand loan amount. Therefore, it cannot
be said that there are no reasonable grounds for initiation of the
proceedings under Section 138 of N.I. Act. It is to be kept in
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mind that acquittal from the case by itself would not be
sufficient to invoke the provisions of Section 250 of the Cr.P.C.
as was observed by the Supreme Court in the case of State of
Rajasthan VS Jainudeen Shekh (supra), there should be
malicious prosecution. So far as malicious prosecution is
concerned, absolutely there is no finding to that effect. On the
contrary, the Trial Court has said that the complainant has
misused the cheque, however, there are certain findings which
are on the basis of surmises and presumption, so far as invoking
provision of Section 250 of Cr.P.C. is concerned. It is further to
be noticed that there is no evidence in regard to issuance of
blank cheque to the Pat Sanstha as security, however, the Court
has observed that "in the light of these factors it is also proved
by the accused that he had given the blank cheque to the pat
sanstha as security." On the contrary, the witness Makarand
Korranne, in his cross-examination admitted that Pat Sanstha is
not allowed to take blank cheque from the borrowers. Further,
Trial Court has given much importance while awarding
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Rs.25,000/- to the accused on the fact that the return memo of
Nishant Credit Society is not placed on record. However, only
return memo of drawee Banker, i.e., SBI Bank is placed on
record by the complainant and on the back side of the cheque at
Exh.20, the endorsement is seen as of the Peoples Co-operative
Bank Ltd., Hingoli, Branch Akola, which is dated 22/03/2013.
For this the explanation was called from the complainant before
invoking the provision of Section 250 of Cr.P.C. Accordingly,
the complainant has given his explanation and submitted that
the cheque at Exh.20 was forwarded by the Nishant Pat Sanstha
to their authorised Bank, i.e., Peoples Co-operative Bank. This
Peoples Co-operative Bank is linked with Nishant Pat Sanstha.
Moreover, the date mentioned on the return memo at Exh.21 of
the drawee bank of SBI is written in Marathi as 24/03/2013,
and accordingly, the learned counsel for the appellant submits
that it is not in the hands of the complainant once he has
presented the cheque for encashment to the Nishant Pat
Sanstha what is written at the back side. However, he submits
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that the signature on the cheque was not denied by the
respondent.
14. There may be discrepancies in the evidence, there
may be shortfalls in the case of the complainant or there may be
fact that the complainant fails to prove the case. These factors
would not lead to invoke Section 250 of Cr.P.C. Further the
proceedings may fail due to N-number of reasons, however, for
invocation of Section 250 of Cr.P.C, as was observed supra,
there should be malicious prosecution and there should be
finding to that effect while rendering the judgment. The entire
tenor of the Judgment depicts that the Court has culled out
major discrepancies which are as under:-
"50] In short the following major discrepancies are
found in the complainant's case as;
i) The date on which the consideration amount is
handed over is missing.
ii) The reasons for delivery of hand loan as described
by the complainant are not believable when the accused
himself is well off as evident from record.
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iii) The cheque return memo of Nishant Multi-State
Co-operative Credit Society Ltd., Akola, Branch Ranpise
Nagar, Akola is not placed on record consequently, it is not
proved.
iv) Name of the Payee's bank is not mentioned in the
return memo of drawer bank i.e. S.B.I.
v) On the back side of the cheque, the name of
stranger bank is written for clearance having dtd. 23.03.2013
which is one day after, when as per the complainant, cheque
returned dishonoured on 22.03.2013. how it does happened
that is not focused by the complainant.
vi) Alleged cheque is of subsequent dt. 20.03.13,
when the accused has already made his loan account NIL on
20.01.13."
15. Therefore, from these major discrepancies one can
come to the conclusion that the complainant has failed to prove
his case, however, it cannot lead to invoke Section 250 of
Cr.P.C. Not only that from the entire evidence, I do not find
that the complaint was lodged with mala fide intention or there
is malice on the part of the complainant to prosecute the
accused for the offence punishable under Section 138 of the
PIYUSH MAHAJAN
Judgment Cr.APPEAL-320-2017
Negotiable Instruments Act, 1881. Therefore, considering the
above facts and circumstances of the case, the findings arrived
at by the Trial Court to the extent of granting compensation by
the complainant / present appellant - Prashant Himmatrao
Jawarkar the accused-Dr. Ganesh Pandurang Vasu, does not
sustain in law, and therefore, the appeal deserves to be allowed
to that extent only. Therefore, the finding only to the extent of
invoking Section 250 of the Cr.P.C. is perverse. Hence, the
following order:-
ORDER
(i) The Appeal is partly allowed;
(ii) The order dated 16/03/2017 passed by
Judicial Magistrate First Class, Court No.5, Akola,
in S.C.C. No. 2110/2013 is hereby quashed and set
aside only to the extent of awarding compensation
of Rs.25,000/- to the accused from the
complainant;
PIYUSH MAHAJAN
Judgment Cr.APPEAL-320-2017
(iii) The appeal is disposed of, accordingly.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
