Advocates:
['VIJAYKUMAR PALIWAL', 'J M GANDHI', '', 'MISS A P GUPTA', 'SAGAR K SHUGWANI']

Judgment

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9 appa 262.2020.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APPA) NO. 262 OF 2020

Smt. Ushakiran wd/o Arun Thute

Aged about 64 years, Occ. Retired,

R/o G-3, Ground floor, Vijay Sahniwas,

W.C.P. Road, Dhantoli, Nagpur.

…. APPLICANT/

APPELLANT

// VERSUS //

Shri Diwakar s/o Dhondbaji Patne,

Aged about 62 years, Occ. Business,

c/o Harikrupa Housing Agency,

5^th floor, Khullar Chamber,

Maharashtra Bank Chowk,

Sitabuldi, Nagpur – 440 012

…. RESPONDENT

_____________________________________________________________

Shri V.K. Paliwal, Advocate for appellant/applicant.

Shri J.M. Gandhi, Advocate for respondent.

___________________________________________________________________

CORAM : VINAY JOSHI, J.

DATED : 22/12/2020.

1.

The applicant/appellant (Complainant) has challenged the

order of acquittal dated 07.03.2013 passed in Regular Criminal Appeal

No. 29 of 2013. The Sessions Court has reversed the order of

conviction recorded by the Magistrate for the offence punishable under

Sections 138 of the Negotiable Instrument Act,1881 (for short “the N.I.

Act”).

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2.

ADMIT. Heard finally by consent of both the parties.

3.

Initially the Complainant has filed private complaint

bearing Summary Criminal Case No. 15031 of 2009 against the

respondent (accused) for the offence punishable under Section 138 of

the N.I. Act. The Trial Court held that the complainant has duly

established the essential ingredients namely issuance of cheque, it’s

dishonor, service of demand notice, non-payment within stipulated

period, and accordingly convicted the accused for the aforesaid

offence. The Trial Court has imposed the sentence of paying

compensation to the tune of Rs.1,00,000/- with stipulation of default

sentence.

4.

Being aggrieved by the order of conviction, accused

preferred Regular Criminal Appeal No. 29 of 2013 in which the

Sessions Court reversed the finding of guilt by holding that the

complainant failed to establish legally enforceable dept or other

liability. Moreover, it was held that the complaint was not tenable

without joining partnership firm as an accused. The said judgment of

acquittal dated 07.01.2013, is the subject matter of this revision.

5.

The facts in nut-shell are that, the complainant-lady was

resident of Laxmi Nagar, Nagpur. She was acquainted with accused

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9 appa 262.2020.odt

who was a property dealer. The complainant gave handloan to the

accused to meet his urgent business need. The accused had not repaid

the amount as per payment condition. Time to time accused made part

payment of handloan and towards last installment issued disputed

cheque tuning Rs.63,000/-. The complainant has presented the cheque

dated 25.03.2009 at her joint account with State Bank of India,

however, it was dishonored for the reason “opening balance

insufficient”. The complainant received written intimation about

dishonor of cheque on 14.07.2009. The complainant issued statutory

demand notice to accused on 12.08.2009 which he received on

14.08.2009. The accused neither replied the notice nor made payment

as demanded. Therefore, private complaint has been filed.

6.

The Trial Court on verification has issued process against

accused. The complainant and accused led evidence in Trial Court as

well as complainant has filed requisite documents. On appreciation of

oral and documentary evidence, the Trial Court held that the

complainant has established essential requisites to constitute the

offence punishable under Section 138 of the N.I. Act and accordingly,

passed the judgment and order of conviction.

7.

The complainant led evidence on affidavit vide Exhibit 56.

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9 appa 262.2020.odt

Her evidence was inconsonance with the contents of complaint. In

support of her case, complainant has examined her employee namely

Sushant Maske at Exhibit 58. Besides