Criminal Appeal No. 31 of 2013. Case: Abhaykumar Krishna Kamat Vs Rajnish Udaykar. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 31 of 2013 |
| Counsel | For Appellant: Anthony Rebello, Advocate |
| Judges | C. V. Bhadang, J. |
| Issue | Negotiable Instruments Act, 1881 - Section 138 |
| Judgement Date | March 14, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
C. V. Bhadang, J.
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By this Appeal, the Appellant/Original Complainant is taking exception to the Judgment and Order dated 08.08.2012, recorded by the learned Judicial Magistrate First Class, Vasco da Gama, in Criminal Case No. 94/OA/NIA/2011/C by which the Respondent-Accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, ('Act', for short).
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Briefly stated, it was the case of the Appellant that on account of friendship, the Appellant had accommodated the Respondent in the sum of Rs. 1,70,000/-. In the complaint filed before the learned Magistrate, the Appellant has set out the details of the payment which were made to the Respondent from time to time from December 2010 to May 2011. The Appellant further claimed that towards repayment of the said amount, the Respondent had issued a cheque bearing No. 231641 dated 15.09.2011 for a sum of Rs. 1,70,000/- in favour of the Appellant. The said cheque was drawn on Centurion Bank Ltd., Vasco da Gama branch. When the said cheque was presented for encashment through UCO Bank, the same was dishonoured with the endorsement that the concerned account of the Respondent was closed. The Appellant thereafter issued a statutory notice which was returned unclaimed. Thus, on account of the failure of the Respondent to pay the amount inspite of the issuance of the notice, the Appellant filed the complaint under Section 138 of the said Act before the learned Magistrate.
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At the trial, the Appellant examined himself and produced the subject cheque and the copy of the legal notice (Exhibit 19) along with the registered envelope (Exhibit 20). The Appellant also examined one Krishna Venkatesh Shenvi, the Branch Manager of UCO Bank, Vasco da Gama Branch. In defence, the Respondent examined himself apart from Smt. Swati Naik (Dw.2), Asst. Branch Manager of Lokmanya Multipurpose Co-operative Society and Shri Sameer Lotlikar, (Dw.3), the Branch Manager of H.D.F.C. Bank, of Vasco Branch.
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The learned Magistrate came to the conclusion that the Appellant had failed to prove that the subject cheque was issued for a legally enforceable debt or liability. In the face of the finding, the learned Magistrate held that the Appellant had failed to prove that the Respondent had committed an offence punishable under Section 138 of the said Act. In that view of the matter, the Respondent came to be acquitted. Feeling aggrieved, the Appellant is before this Court.
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