Advocates:
['GANGAKHEDKAR SHAILENDRA S', 'COPY SERVED ON PP', '', 'R/SOLE SERVED', 'PALODKAR DEVDATT P']

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986

FARAD CONTINUATION SHEET NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

APPELLATE SIDE JURISDICTION

Office

Notes,

Office

Memoranda

of

Coram,

appearance, Court's orders or

directions and Registrar's

orders.

Court's or Judge's orders.

CRIMINAL APPLICATION NO. 986 OF 2012

ARUN SHRIRAM BANKAR

VERSUS

SHANTARAM SHANKARRAO SURADAKAR

...

Advocate for Applicant : Mr. Gangakhedkar Shailendra S.

Advocate for Respondent: Mr. D.P.Palodkar.

APP for Respondent (in Criminal Appeal) : Mr. A.V.

Deshmukh.

***

CORAM: V. K. JADHAV, J.

DATED:

27th AUGUST, 2014.

ORAL ORDER:

1

Heard learned counsel Mr. S.S. Gangakhedkar for

the Applicant/ original complainant and Mr. D.P.Palodkar,

appearing for the Respondent/sole-original accused.

2.

By way of the present application, the applicant is

seeking leave to file appeal against the judgment and

order dated 19th January, 2012 passed 15th Judicial

Magistrate, First Class, Aurangabad in S.C.C. No.2027 of

2007 thereby dismissing the complaint and acquitting

the accused for the offence punishable under section

138 of the Negotiable Instruments Act.

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986

3.

The brief facts, giving rise to the present

application are as under:-

(i)

The Applicant/ original complainant gave Rs.4

Lakhs to the Respondent/ original accused as hand loan

and the Respondent/ accused has issued a cheque for

the said amount. The applicant has deposited the said

cheque in bank for collection, however, it was returned

unpaid with an endorsement “funds insufficient”.

(ii)

The complainant, after completion of the legal

formalities, filed a complaint before the 15th Judicial

Magistrate, First Class, Aurangabad.

(iii)

The Applicant as well as the Respondent herein

have adduced oral and documentary evidence in support

of their respective contentions.

(iv)

The learned 15th Judicial Magistrate, First Class,

Aurangabad vide his judgment and order dated 19th

January, 2012 acquitted the Respondent/ original

accused for the offence punishable under section 138 of

the Negotiable Instruments Act. Being aggrieved by the

same, the applicant/ original complainant has preferred

the present application seeking leave to prefer an

appeal.

4.

The learned counsel appearing for the Applicant

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states that the disputed cheque bear the signature of the

Respondent and has been issued from the account

maintained by him. It is also not disputed that the

cheque was deposited by the applicant/ original

complainant and the same was returned unpaid due to

insufficiency of funds. The learned counsel for the

Petitioner submits that the court below has not taken

into consideration the provisions of Section 118-E and

139 of the Negotiable Instruments Act in its proper spirit.

The learned counsel for the Applicant further submits

that the applicant has strong hope of success in the

appeal and that leave to prefer appeal is necessary to be

granted.

5.

The learned counsel appearing for the Respondent/

original accused states that the learned Judge of the trial

Court has rightly acquitted the Respondent/ original

accused for the offence punishable under section 138 of

the Negotiable Instruments Act by relying upon the

cases in the case of (i) “Sanjay Mishra V/s Mrs.

Kanishka Kapoor” reported in 2009 Cri.L.J.377 and

(ii) “Krushna Janardan Bhat V/s Dattatraya G.

Hegade” reported in “AIR 2008 SC 1325. The learned

counsel for the Respondent/ original accused has thus

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submitted that the application for leave to prefer appeal

is devoid of merit and thus liable to be rejected.

6.

The learned counsel for the Respondent/ original

accused has submitted that even though in the year

2005 as per the say of the complainant an amount of

Rs.4 Lakhs was given to th