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ala 74.19.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY

NO.74 OF 2019

BHAURAO CHAVAN SAHAKAR SAKHAR KARKHANA

LTD., THROUGH IT’S AUTHORIZED OFFICER KISHAN

S/O. MAROTRAO JADHAV

VERSUS

HAJI ABDUL KARIM S/O. MOHD. SETH THEJIYA

...

Advocate for Appellant : Mr. Ghatol Patil Shahaji B.

Advocate for Respondents : Mr. Taher Ali Quadri

...

CORAM : SHRIKANT D. KULKARNI, J.

Dated: August 11, 2022

...

PER COURT :-

1.

The applicant, a Co-operative Sugar Factory is

seeking leave to fle an appeal by taking aid of Section

378(4) of the Criminal Procedure Code.

2.

Heard learned counsel for respective parties.

3.

Mr. Ghatol, learned counsel for the applicant

invited attention of this Court to the impugned

judgment paragraph no.37. He pointed out that, the

observations made by the Trial Court regarding

requirement to prove the case of dishonour of cheque

are exfacie incorrect. He submitted that, even if cheque

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ala 74.19.odt

is dishonoured on account of instructions of payment

stop, Section 138 of the Negotiable Instruments Act,

1881 attracts. He submitted that the learned Trial

Court has committed an error in observing that it is not

a case that cheque was dishonoured due to insuffcient

funds, but it was for ‘payment stop’. Mr. Ghatol has

placed his reliance on following citations.

i.

Pulsive Technologies Private Limited

Vs. State of Gujarat and others reported in

(2014) 13 Supreme Court Cases 18.

ii.

HMT Watches Limited Vs. M.A.Abida

and another reported in (2015) 11 Supreme

Court Cases 776.

iii.

Modi Cements Ltd., Vs. Kuchil Kumar

Nandi reported in (1998) 3 Supreme Court

Cases 249.

4.

By placing reliance on above said citations,

learned counsel Mr. Ghatol submitted that the learned

Trial Court has committed an error in acquitting the

respondent/accused. He submitted that in detail

scrutiny of the judgment and order of acquittal needs at

the hands of this Court and as such, leave may be

granted.

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ala 74.19.odt

5.

Per contra, learned counsel Mr. Quadri for

respondent/original accused invited my attention to the

impugned judgment and order more, particularly,

paragraph nos.10 and 11. He pointed out that cheque in

question was issued by the partnership frm Babajan

Corporation. He pointed out that there were three

partners as per the admission given by CW-2 Shingewar.

He pointed out that partnership frm is not made party

to the proceedings. Consequently, all the three partners

are not made accused. Only one partner is shown as an

accused. He submitted that it is not permissible. It is a

defect in view of section 141 of the Negotiable

Instruments Act.

6.

Mr. Quadri learned counsel for respondent

submitted that there was no enforceable debt and as

such respondent instructed his Bank to stop the

payment. Complainant failed to prove it’s case that any

arrears were due in the name of respondent towards

purchase of sugar. As such, the Trial Court has rightly

held that there was no enforceable debt. He supported

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ala 74.19.odt

to the fndings recorded by the learned Magistrate while

acquitting the accused. He submitted that, no case is

made out to grant leave.

7.

I have considered the submissions of learned

counsel for both sides. Perused the impugned judgment

and order of acquittal rendered by the Judicial

Magistrate First Class, Nanded in SCC No.938 of 2010.

8.

First, I shall deal with the legal point whether

instructions of stop payment issued to the Bank would

attract section 138 of the Negotiable Instruments Act.

In the present case, respondent has issued instructions

to his bank