Aditya Pathak vs Satish Shivhare
2023 Latest Caselaw 12215 MP

                                                              1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                      CRA No. 8211 of 2023
                                                   (ADITYA PATHAK Vs SATISH SHIVHARE)

                          Dated : 01-08-2023
                                Shri Rishikesh Bohare- Advocate for the appellant.

                                Heard on I.A. No. 11604 of 2023 which is an application for leave to
                          appeal filed u/s. 378 (4) of Cr.P.C against the judgment dated 06.05.2023
                          passed by Shri Ajeet Singh Baskale, Judical Magistrate First Class, Guna (M.P.)
                          in Case No. SCNIA 38/2017.
                                The application for grant of leave interalia states as under:-

                                1. Applicant has preferred criminal appeal u/s. 378 (4) Cr.P.C assailing
                          the judgement dated 06.05.2023 passed by JMFC, Guna in SCNIA 38 of 2017
                          whereby respondent Satish Shivhare is acquitted from the charge of offence

punishable u/s. 138 of Negotiable Instruments Act.

2. The cheque in question was issued in favour of the appellant by the respondent for an amount of Rs. 3,50,000/- for payment of outstanding loan but the same got dishonored due to "stop payment" direction given by the respondent to the banker. The appellant/complainant has produced sufficient evidence in support of his case whereas the respondent/accused failed to rebut

the presumption u/s. 139 of the Act. Learned Trial Court committed error in acquitting the respondent/accused. The appellant proposes to challenge the finding of acquittal, therefore, he may be granted leave to appeal.

Learned Counsel for the appellant draws attention of this Court to para no. 20 of the impugned judgment dated 06.05.2023. Learned Counsel contends that the Trial Court committed error in holding that the defence of accused is probable that he has not received loan of Rs. 3,50,000/- from the complainant. Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 02-Aug-23 5:32:50 PM

Learned Counsel contends that the notice dated 11.04.2016 (Ex. D/44) is relied by learned Trial Court to hold that the accused had given notice to the complainant to return his blank cheques before filing of the complaint. Learned Counsel further contends that notice dated 11.04.2016 (Ex. D/44) does not mention cheque no. 011133 dated 06.09.2016, therefore, that notice may not relate to the offence in question.

Heard. Perused the record.

The contention advanced by learned Counsel for the appellant appears to be of substance. The appeal seems to be arguable, therefore, I.A. No. 11604 of 2023 is allowed. Leave to appeal is granted.

Issue notice to respondent on payment of PF within seven working days by RAD as well as ordinary mode, returnable within four weeks.

List thereafter.

(SANJEEV S KALGAONKAR) JUDGE

ar

Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 02-Aug-23 5:32:50 PM