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Bombay High Court

Vardhman Steel, E-12, Midc, Waluj, ... vs Sai Engineering, Mahadeo Thorat ... on 5 March, 2019

Author: K.K. Sonawane

Bench: K.K. Sonawane

                                                1                                ALP 57/18

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD


                 914 APPLICATION FOR LEAVE TO APPEAL
                     BY PVT. PARTY NO. 57 OF 2018

      Vardhman Steel, E-12, MIDC, Waluj,                                      Applicant
      Aurangabad
      V E R S U S
      Sai   Engineering,                 Mr.         Mahadeo                Respondent
      Thorat, Proprietor

          Mr. M.V. Ghatge, Advocate for the Applicant
          Mr. R.V. Gore, Advocate for the Respondent
                                          ...

                                            CORAM : K.K. SONAWANE, J.

DATE : 5th March, 2019 PER COURT :

Heard the learned counsel for the applicant and learned counsel for the respondent. Perused the application and documents produced on record.

2. The present application is filed by the applicant seeking leave under Section 378 [4] of Code of Criminal Procedure to file an appeal against the impugned Judgment and order of acquittal of the respondent/accused, passed by the learned Judicial Magistrate, First Class, Aurangabad, in S.C.C. No. 3245 of 2016 under Section 138 of Negotiable Instruments Act.

3. The learned counsel for the applicant submits that the impugned Judgment and order of acquittal passed by the learned Magistrate is erroneous, illegal and unsustainable in law. The learned Magistrate did not appreciate the postal documents in regard to service of notice to the respondent. The applicant has produced the extract of notice issued to the respondent. The learned Magistrate found reluctant to consider the same for want of proof. The learned counsel for the applicant drawn attention of this Court towards the postal documents produced on record as well as extract of notice issued to the respondent for the purpose of compliance of statutory notice. The learned counsel for the applicant further argued that the learned trial Court after considering the evidence on record observed that the impugned cheque was issued by the accused in favour of complainant for discharging the legal liability, but the cheque came to be dishonored for lack of "sufficient funds". However, the learned trial Court dismissed the complaint only on the ground of non-compliance of issuance of statutory notice by the complainant. According to the learned counsel for the applicant, the documents produced on record are sufficient to prove the issuance of statutory notice to the respondent. Therefore, the learned counsel for the applicant submits that the leave to present appeal under Section 378 [4] of Cr.P.C. is necessary to be ::: Uploaded on - 06/03/2019 ::: Downloaded on - 13/03/2019 22:37:26 ::: 3 ALP 57/18 granted in favour of the applicant.

4. Learned counsel Mr. R.V. Gore for the respondent submits that the trial Court has dealt with the proceeding in proper manner. The complainant failed to prove the contents of statutory notice.

Therefore, it cannot be held that the respondent/accused failed to discharge his liability after receipt of notice, and therefore, offence under Section 138 of Negotiable Instruments Act cannot be proved against the respondent. The defence of the respondent/accused is of total denial in nature. No statutory notice was issued and also served on him. Therefore, for non-compliance of mandatory provision under Law, there is no propriety to proceed further in this matter.

5. I have given anxious consideration to the arguments advanced on behalf of both sides. I have also delved into private paper-book produced on record as well as impugned Judgment and order of acquittal of the respondent/accused passed by the learned trial Court. It is to be noted that the proceeding under Section 138 of Negotiable Instruments Act is a summary proceeding in nature, as prescribed under Law. There are averments in the complaint that after dishonour of cheque, the complainant issued the demand notice on 2 nd March, 2015, but acknowledgment of the same has not ::: Uploaded on - 06/03/2019 ::: Downloaded on - 13/03/2019 22:37:26 ::: 4 ALP 57/18 been received to the complainant. Therefore, he filed the complaint to the postal department. It has been informed to the complainant that both the notices were delivered and served upon the respondent/accused. It is not in dispute that the respondent did not raise objection about service of notice to him. It is also an admitted fact that the impugned cheque was issued by the respondent in favour of applicant for discharging his legal liability. The learned trial Court has observed about the same in affirmative manner. It is also not denied that the impugned cheque was presented for encashment to the bank, which was dishonored for lack of "sufficient funds". In such circumstances, when the applicant initiated a penal proceeding under Section 138 of Negotiable Instruments Act, it would be preposterous to appreciate that there was no statutory notice issued on behalf of complainant to the accused.

6. Be that as it may, all these circumstances are required to be discussed during the course of appeal on merit. There are relevant documents filed on record. The credibility of said documents would be considered at the time of final hearing of the appeal. Therefore, in view of Section 378 [4] of Cr.P.C. leave to present appeal is required to be accorded in the interest of justice. Hence, leave is to be granted in ::: Uploaded on - 06/03/2019 ::: Downloaded on - 13/03/2019 22:37:26 ::: 5 ALP 57/18 favour of the complainant to file an Appeal.

7. Hence, the application stands allowed in terms of prayer clause "A". The permission is granted to the applicant to file an Appeal against the impugned Judgment and order passed by the learned Magistrate, First Class, Court No.13, Aurangabad in S.C.C. No.3245 of 2016. In view of above, present Criminal Application stands disposed of accordingly.

8. The Registry to take requisite steps for further process. The present application filed on behalf of applicant be treated as Appeal-Memo for further process.

9. On registration of Appeal, issue notice to the respondent. Mr. R.V. Gore, learned counsel waives service of notice on behalf of respondent.

10. Record and proceeding has already been received to this Court.

11. After compliance of procedural formalities, list the appeal for admission in due course.

( K.K. SONAWANE, J. ) SRM/5/3/19 ::: Uploaded on - 06/03/2019 ::: Downloaded on - 13/03/2019 22:37:26 :::