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Narendra Parma Judgement
Narendra Parma Judgement
1 apeal507.2009.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 507/2009
Vishal Narendrabhai Parmar,
Aged about 29 years,
Occ: Business, C/o Rajeshwar Complex,
Opp. Municipal Corporation Akola,
Tq. And Dist. Akola
…. APPELLANT
// VERSUS //
Pavan Diliprao Dike,
Aged Adult, Occ: Business,
R/o Opp. Trimurti Gas Services,
Tidke Nagar, Murtizapur,
Dist. Akola
…. RESPONDENT
___________________________________________________________________
Shri S.P. Bhave, Advocate h/f Shri U.N. Vyas, Advocate for the appellant
None for the respondent
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : 16/05/2018
ORAL JUDGMENT :
1] None appeared for the respondent on 15/05/2018. Hearing of
the appeal was adjourned. Today again, none appears for the respondent.
Heard Shri S.P. Bhave, Advocate holding for Shri U.N. Vyas, Advocate for the
appellant.
2] The appellant/complainant has filed this appeal to challenge the
judgment passed by the learned Magistrate dismissing the complaint filed by
him under Section 138 of the Negotiable Instruments Act, 1881 (for short
“the Act of 1881”). The complaint is dismissed on the ground that the
complainant has failed to prove that the cheque which was dishonored was
given by the accused to the complainant to discharge the legal debt/liability.
account of the accused and with the signature of the accused was presented
by the complainant and it was dishonored as funds in the account of the
accused were insufficient. The learned Magistrate has recorded that the
complainant has proved that the cheque was dishonored as the amount in
the account of the accused was insufficient. The learned Magistrate has
recorded that the complainant had issued notice demanding the amount
from the accused, and the notice was served on the accused.
4] The only point which is required to be considered is whether the
conclusions of the learned Magistrate that the complainant has not been
establish that the cheque was given by the accused to discharge the legal
debt/liability, are proper and sustainable.
5] As per Section 139 of the Act of 1881, the burden to prove that
the cheque in question was issued for some purpose other than discharging
legal debt/liablitiy is on the accused. The defence of the accused is that his
maternal uncle Shri Anil Manohar Kene had taken loan from various persons
and had also opened an account in the name of the accused and had
obtained cheque book of the account in the name of the accused and the
cheque in question might have been given by Shri Anil Manohar Kene to the
complainant. According to the accused, he has not received any amount from
the complainant and therefore, he is not liable to pay any amount to the
complainant.
accused cannot be accepted. The cheque was of the account of the accused
and the accused has not been able to show that the signature on the cheque
is not of the accused. The learned Magistrate has committed an error by
dismissing the complaint filed by the complainant on the ground that the
complainant has not been able to prove that the cheque in question was
given to the complainant to discharge the legal debt/liability.
7] In view of the above findings, the following order is passed:
O R D E R
a) The impugned judgment is set aside.
b) It is held that the respondent/accused is liable for
conviction for the offence punishable under Section 138 of the
Act of 1881.
Rs. 1, 20,000/ (Rs. One Lakh Twenty Thousand) before the
learned Magistrate within two months.
respondent/accused shall undergo imprisonment for one year.
Out of the amount which would be deposited by
the accused, an amount of Rs. 1, 10,000/ (Rs. One Lakh Ten
compensation.
The remaining amount shall be treated as fine.
8] The appeal is allowed in the above terms.
9] In the circumstances, the respondent/accused shall pay costs of
Rs. 10,000/ (Rs. Ten Thousand) to the appellant/complainant and produce
receipt of it on record of this appeal within two months.
JUDGE
Ansari