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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

BENCH AT AURANGABAD.

905 CRIMINAL APPEAL NO. 487 OF 2017

DEVGIRI NAGRI SAHAKARI PATH-SANSTHA

MARYADIT, AURANGABAD THROUGH

ANIL S/O. KACHRU SULTANE

.. Appellant

VERSUS

SMT. MEENABAI ASHOK SURADKAR

.. Respondent

...

Advocate for the Appellant

:

Shri S.A. Gaikwad

…

CORAM : P. R. BORA, J.

Dated: November 09, 2017

PER COURT :

1.

Heard the learned Counsel for the appellant. Though the

respondent is duly served, has not appeared in the matter.

2.

The appellant has filed the present appeal against the

Judgment and order passed by the Court of Judicial Magistrate, First

Class at Aurangabad in Summary Criminal Case No.613 of 2011

decided on 28.07.2015.

3.

The appellant is a Co-operative Society registered under

the provisions of the Maharashtra Co-operative Societies Act, 1960.

The appellant - Society had filed the complaint against the present

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respondent under Section 138 of the Negotiable Instruments Act,

1881 (hereinafter referred to as the 'N.I. Act'). It was the case of the

appellant in the said complaint that, the cheque issued by the

respondent in favour of the appellant - Society for the amount of

Rs.31,739/- got dishonured because of the insufficient funds in her

account on which the said cheque was drawn. According to the

appellant – Society, the cheque as aforesaid was issued by the

respondent towards the repayment of the loan, which was obtained

by the respondent from the appellant- Society. Before filing of the

aforesaid compliant, the statutory notice as provided under Section

138 of the N.I. Act was issued by the appellant - Society and was duly

served upon the respondent. As is revealing from the pleadings, no

reply was given to the said notice by the respondent. Since, even after

receipt of the said notice, the cheque amount was not paid by the

respondent, the appellant - Society filed the aforesaid compliant

against the respondent under Section 138 of the N.I. Act.

4.

In order to substantiate the contentions raised in the

complaint, one witness was examined by the appellant - Society and

necessary documents were placed on record.

5.

The respondent neither entered into the witness box nor

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examined any witness in her defence.

6.

The learned Magistrate after having assessed the oral as

well as documentary evidence brought on record, rejected the

complaint filed by the appellant - Society. Aggrieved by, an

application was preferred by the appellant - Society before this Court

seeking leave to appeal against the said Judgment. Vide order passed

on 4^th October, 2017, the leave was granted to the appellant - Society

and the present appeal came to be registered in pursuance of the said

order.

7.

Perused the impugned Judgment. While deciding the

complaint filed by the appellant -Society, the learned Magistrate had

framed four points. I am reproducing the said points herein below

with the findings thereon recorded by the learned Magistrate.

SR.

NOS.

POINTS

FINDINGS

1)

Does complainant society prove that, it has

complied with all the necessary ingredients of

the offence ?

.. In the

affirmative

2)

Does the complainant society prove that the

subject cheque is drawn by the accused

towards the discharge of her legally

enforceable debt ?

.. In the

affirmative

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3)

Whether the complaint is lawfully instituted?

.. In the

negative.

4)

What order ?

As per final

order.

8.

From the issues framed and the findings recorded as

above by the learned Magistrate, it is quite evident that, the

complaint has been dismissed on the count that, the complainant has

failed to prove that the complaint was lawfully instituted. While

answering point no.3, the discussion made by the learned Magistrate

is thus:

“14.

The learned Counsel for the accused