1 CRI. APPEAL.382-2022 JUDGMENT.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL

NO.

382

OF

2022

M/s Sai Auto Agencies,

through its partner,

Dnyandeo s/o Ramdas Rane,

Aged about 53 years,

Occupation – Business,

R/o Sainagar, Amravati.

APPELLANT

Versus

Hemant Ambadas Bajad,

Aged 45 years,

Occupation – Broker and Agent,

R/o. Chandrawati Nagar,

Amravati, Tahsil & Dist – Amravati.

RESPONDENT

Mr. Ritesh N. Badhe Advocate for the Appellant.

Mr. P.R. Agrawal, Advocate for the Respondent.

CORAM : AVINASH G. GHAROTE, J.

Judgment reserved on

: 22/07/2022

Judgment pronounced on : 19/08/2022

J U D G M E N T

1.

Heard Mr. Badhe, learned counsel for the

appellant/original complainant and Mr. Agrawal, learned counsel for

the respondent/original accused. Admit. Heard finally with the

consent of the learned counsels for the rival parties.

2 CRI. APPEAL.382-2022 JUDGMENT.odt

2.

The present appeal arises out of the judgment by the

learned Sessions Court in Criminal Appeal No.30/2018 dated

05.01.2022 whereby the judgment dated 18.01.2018 passed by the

learned Chief Judicial Magistrate, convicting the accused for the

offence punishable under Section 138 of the Negotiable Instruments

Act (hereinafter to be referred as the “N.I. Act”) and sentencing him

to suffer simple imprisonment for three months and to pay a

compensation of Rs.10,50,000/-, in default to suffer simple

imprisonment for one month, has been set aside on the ground that

since an amount of Rs.3,90,000/- was recovered by the complainant

prior to the issuance of cheque by the accused which is claimed to

have been admitted in his evidence, he was not entitled to present

the cheque, but was liable to return it and take a fresh cheque for the

balance amount and present it thereafter (para 10 page 19/20). The

complainant having not so done it was held that the presumption

under Section 139 of the N.I. Act stood rebutted and therefore, the

accused was entitled to an acquittal which was so ordered.

3.

The factual matrix is as under :

(i)

The complainant is a dealer, who deals in sale of

tractors. On 19.09.2009 an agreement came to be entered between

the complainant and the accused, (Exh.34 page 86), under the terms

3 CRI. APPEAL.382-2022 JUDGMENT.odt

of which the accused had agreed to sell tractors and take a

commission for such sale. It was further agreed that the commission

would not be included in the price of the tractors but would be

separately chargeable and receivable by the accused directly from the

purchaser and price of the tractor would be remitted by the accused

to the complainant.

(ii)

It is in pursuance to this agreement dated 19.09.2009 at

Exh.34, that the accused made multiple transactions of sale of

tractors for the complainant.

(iii)

There was accounting in between the complainant and

the accused on 15.06.2011, as a result of which, the accused issued a

letter to the complainant of the same date (Exh.42 page 94), in

which, the accused admitted his liability to the tune of

Rs.14,72,799/- and in pursuance to that issued a cheque bearing

No.215535, dated 16.06.2011 in the aforesaid sum drawn on the

Axis Bank, Pune in favour of the complainant (Exh.44-cheque).

(iv)

The said cheque was presented by the complainant to

his bankers for realization, however, by a cheque return memo dated

13.07.2011 issued by the State Bank of India (bankers of the

complainant) it was intimated that the amount could not be realized

on account of the payment having been stopped by the drawer

4 CRI. APPEAL.382-2022 JUDGMENT.odt

(Exh.47 page 99).

(v)

On 11.08.2011, a demand notice under Section 138 of

the N.I. Act (Exh.49 page 100) was issued by the complainant.

During the period 13