Hinganghat Nagri Sahakari Path vs Gulab Son Of Krushnaji on 1 July, 2008

[Cites 1, Cited by 1]

Bombay High Court

Hinganghat Nagri Sahakari Path vs Gulab Son Of Krushnaji on 1 July, 2008

Bench: A.H.Joshi

                                1




                                                                   
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH : NAGPUR




                                           
                 Criminal Appeal No. 350 of 2008

     Hinganghat Nagri Sahakari Path
     Sanstha Maryadit,




                                          
     Hinganghat, through its
     Manager Shri Keshav Narayan Kumbhare,
     aged about 45 years,
     resident of Hinganghat,
     Distt. Wardha.                     ....              Appellant.




                              
                              Versus
                  
     Gulab son of Krushnaji
     Pimpalshende,
     aged major,
                 
     occupation - business,
     resident of Nishanpura Ward,
     Hinganghat,
     Tq. Hinganghat,
     Distt. Wardha.            .....                      Respondent.
      
   



                              *****
     Mr. Apurv De, Advocate for appellant.

     Mr. H.D. Dangre, Advocate for respondent.





                               *****


                               CORAM   :     A.H.JOSHI, J.





                               Date    :     01st July,2008.

     ORAL JUDGMENT :

1. Heard learned Advocates for both the sides.

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2. Appeal is admitted and is called out for final hearing in the light of order passed by this Court on 27th June, 2008 recording that case would be heard finally for considering remand.

3. Appeal proceeds on admitted facts, namely:-

[a] There is a relationship of creditor and debtor between complainant and accused.

[b] Debt is within limitation.

[c] Cheque was issued by the accused towards repayment of dues.

[d] Cheque has been dishonoured and notice under Section 138 of the Negotiable Instruments Act is served and complaint is filed within limitation.

[e] Notice was not replied by the accused.

[f] Defence and controversy as to whether accused is not a member or nominal member of the complainant was raised for the first time in the cross-examination and then in oral arguments.

[g] The complainant had no opportunity to know the defence so as to prepare to meet it.

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4. It is seen from the judgment that all findings, except on the points referred to in Points [f] and [g] of foregoing para no.3, are in favour of the complainant.

5. It is, thus, clear that the complainant has been taken by surprise as to the point on which the case was being defended by the accused in absence of reply to the notice under Section 138 of the Negotiable Instruments Act.

6. Moreover, a broader proposition that the loan given by a Society to a non-member is an illegality and such amount would not be recoverable in law, is an inference drawn by the Trial Court without any support of mandatory legal provision to that effect.

7. Even to this aspect, the complainant did not get a fair and reasonable opportunity. On this ground alone, this appeal is allowed and impugned Judgment and order is set aside, and case is remanded to the Trial Court for hearing and disposal according to law. Upon ::: Downloaded on - 09/06/2013 13:32:49 ::: 4 remand, the complainant would be entitled to file additional documents, if any, lead further examination-

in-chief, and additional evidence, if any, if it desires.

JUDGE

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