FOR LEAVE TO APPEAL BY PVT. PARTY NO. 211 OF 2019 Kashinath v. N. Naik Marg, Nashik
Case at a glance
Outcome
Allowed
Hence, I proceed to pass the following order :- ORDER (i)Application stands allowed
Provisions considered
Key paragraphs
- Para 88. Both sides have adduced sufficient evidence from each oftheir side. Prima face complainant’s case is that, because of friendlyrelations, loan was extended and towards repayment cheque was -4- ALP-211-2019issued. Specific defence of accused is that, he is a Chairman of Belganga Sugar Factory, which…
Judgment
Cause title
-1- ALP-211-2019IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABADAPPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO. 211 OF 2019
Kashinath s/o. Dodha Patil, Age : 59 years, Occu. : Service, R/o. : Flat No.1, Building No.6, Patil Park, Near Old Gangapur Naka, V. N. Naik Marg, Nashik… Applicant
/Appellant(Orig. Complainant)Versus1.Ramkrishana Motiram Patil, Age : 35 years, Occu. : Trade, Resident of : 1) ‘Omkar’ Bunglow, 19/12/1 (B), Deshmukh Nagar, Bavdhan Khurd, Pune – 21. In the alternative2) C/o. M. K. Patil,M. P. Vivekanand Nagar, Kargaon Road, Chalisgaon, Dist. JalgaonIn the alternative 3) C/o. Shriram and Patil Associates,7/3 Manohar Apartment, Karve Road, Erandwane, Pune -4.… Non-Applicant/ Respondent (Orig. Accused)
Mr. Bhushan Dhawale a/w
Mr. J. V. Patil, Advocates for Appellant.
Mr. Vinod P. Patil, Advocate for Respondent sole....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 22nd FEBRUARY, 2024
PRONOUNCED ON : 26th FEBRUARY, 2024
ORDER :
Leave to file appeal is sought by original complainant on -2- ALP-211-2019account of acquittal of respondent from offence punishable undersection 138 Negotiable Instruments Act, 1881 by virtue ofproceedings bearing S.C.C. No. 379 of 2005.
Finding fault in the appreciation and conclusion drawnby learned Judicial Magistrate First Class, (Court No.1), Chalisgaon, Dist. Jalgaon, learned counsel for complainant would point out thatdue to friendly relations, complainant had extended hand loan. Cheque towards repayment was issued. Both cheque as well assignature over it has not been denied, but still learned trial courtacquitted the accused on the ground that complainant had nosufficient source to extend the loan. Learned counsel submits that, there is improper appreciation of both evidence as well as law, andtherefore, there being good case on merits. Hence, he prays for leaveto file appeal.
Per contra, learned counsel for respondent accusedsubmitted that, complainant is a Government servant. Consideringhis salary, it is not possible for him to extend the loan ofRs.10,45,560/-. It is pointed out that, case is tried to be made aboutwithdrawal of some amount from bank and remaining to be raisedfrom near and dear ones, but there is no evidence in that regard. That, even complainant being a public servant, was not authorized -3- ALP-211-2019to enter into any loan transaction outside the service. That suchaspects are categorically dealt and decided by learned trial Judgeand has rightly dismissed the compliant and hence he prays torefuse leave by dismissing the application.
Perused the complaint and impugned judgment.
Case in trial court set up by complainant is that, out ofgood relations with accused, on request and as an urgent need ofmoney, he gave Rs.10,45,560/-, and towards its repayment, accusedissued cheque, but it was dishonoured and therefore proceedingsunder section 138 of N.I. Act were instituted after notice.
It seems that, apart from his own evidence at Exh.21,another witness is examined and reliance is placed on documentslike cheque, bank return memo and notice etc.
Even, accused seems to have adduced his own evidence, evidence of bank official and Income Tax Authorities.
Operative part
Both sides have adduced sufficient evidence from each oftheir side. Prima face complainant’s case is that, because of friendlyrelations, loan was extended and towards repayment cheque was -4- ALP-211-2019issued. Specific defence of accused is that, he is a Chairman of Belganga Sugar Factory, which was suffering financial loss. Factoryraised funds and complainant was member of Government ServantsCo-operative Bank Dhule. Further complainant obtained loan fromthe bank to help the sugar factory. Case is also tried to be set up byaccused that complainant being government servant, is notpermitted to enter into such transaction in view of MaharashtraCivil Services Rules.9. On going through the judgment, it transpires thatlearned trial court has answered points no.2, 3 and 4 in affirmative. But, complaint seems to be dismissed on the count that complainantfailed to establish that there was legally enforceable debt towardsaccused. 10. In the light of above observations, there is a debatableissue and arguable points seems to be involved, which cannot bedealt and decided at this stage. It can only be done at appellatestage. Consequently, when initial presume is available and in thelight of above peculiar defence, leave as prayed is required to begranted. Hence, I proceed to pass the following order :- ORDER (i)Application stands allowed. -5- ALP-211-2019 (ii)Leave is granted to file Appeal. (iii)Registry to register the Appeal. (iv)Appeal stands admitted. (v)Call record and proceedings. (ABHAY S. WAGHWASE, J.) Tandale
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Hence, I proceed to pass the following order :- ORDER (i)Application stands allowed
Which statutory provisions did this judgment involve?
Negotiable Instruments Act, 1881 — s. 138.
Which court decided this case, and when?
Bombay High Court, on 26 Feb 2024. The bench was ABHAY S WAGHWASE.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.