1/12

36apeal466-22 (JUD).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.466 OF 2022

Mr. Hemant Prabhakar Patil, Proprietor of

Kaushalya Motors, Aged about 45 years,

Occupation – Business, resident of Post –

Ralegaon, Tahsil _ Ralegaon, District –

Yavatmal, (Maharashtra State)

.... Appellant

(Org. Complainant)

// VERSUS //

Mr. Nitesh s/o Keshavrao Onkar, Aged

about 38 years, Occupation-Nil, resident

of Mata Nagar, Ralegaon, Tahsil –

Ralegaon,

District

–

Yavatmal,

(Maharashtra State).

... Respondent

(Org. Accused)

Ms A.H. Dangre, Advocate for appellant

Shri Anup S. Dhore, Advocate for respondent

CORAM : ANIL S. KILOR, J.

DATED : 08.12.2022.

ORAL JUDGMENT :

1.

Heard.

2.

ADMIT.

nd.thawre

2/12

36apeal466-22 (JUD).odt

3.

In this appeal a challenge is raised to the judgment and order dated

22.03.2022 passed in Summary Criminal Complaint No.306 of 2017

passed by the Judicial Magistrate First Class (JMFC), Ralegaon, District

Yavatmal, acquitting the respondent/accused for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the

NI Act”)

4.

The complainant’s case in short is that, he is a proprietor of a

proprietary firm ‘Kausalya Motors’ and does the business of selling Hero

motorcycles. The complainant and the respondent were friends. In the

month of October-2016, the respondent was in need of money of

Rs.50,000/- which the complainant paid to him as a hand loan vide cheque

(bearing No.17860) dated 14.10.2016 of his account maintained at Pusad

Urban Co-operative Bank, Ralegaon.

5.

It is further case of the complainant that the accused assured him to

pay back the said amount on or before 30.12.2016, but failed to return the

said amount. It is stated that on 27.02.2017, the respondent issued a

cheque (bearing No.004813) of amount of Rs.50,000/- of his account

maintained at Yavatmal Urban Co-operative Bank Ltd. in favour of the

nd.thawre

3/12

36apeal466-22 (JUD).odt

complainant in the name of Kausalya Motors. On presenting the said

cheque, it was returned for the reason of ‘funds insufficient’.

6.

Therefore, a statutory notice was issued on 17.03.2017, calling upon

the accused/respondent to pay back the amount of Rs.50,000/- within 15

days from the date of the receipt of the notice. The notice was served upon

the respondent on 22.03.2017, however, he neither paid the amount within

15 days nor gave any reply to it. Therefore, the complaint was filed.

7.

The learned trial Court after recording the substance of accusation

vide Exh.17, it was read over to the respondent and explained him in

vernacular. The respondent/accused pleaded not guilty and claimed to be

tried.

8.

The complainant examined himself on affidavit vide Exh.21 to bring

home guilt of the accused. The learned JMFC recorded the statement of

the accused under Section 313 of the Cr.P.C. (Exh. 52).

9.

The learned trial Court, after considering the oral as well as

documentary evidence, passed the impugned judgment and order dated

22.03.2022, acquitting the respondent for the offence punishable under

Section 138 of the NI Act. Hence, this appeal.

nd.thawre

4/12

36apeal466-22 (JUD).odt

10.

I have heard the learned counsel for the respective parties.

11.

Ms Dangre, learned counsel for the appellant, submits that the

learned trial Court has committed error in acquitting the respondent

without considering the legal position that a proprietary concern is not a

legal entity distinct from its proprietor. To substantiate her submission, she

has placed reliance upon the judgment of the Hon’ble Supreme Court of

India, in the case of Shankar Finance and Investments Vs. State of Andhra

Pradesh and others¹ and the order of the Co-ordinate Bench of this Court,

passed in the Criminal Revision Application (Revn) No.238 of 2019

(Sanjay s/o Vijay