The applicant challenged the acquittal of the accused in a cheque dishonour case under Section 138 NI Act. The High Court refused leave to appeal, holding that the trial Court could reasonably have taken the view that no debt existed, and it should not substitute its view.
Leave to appeal refused; criminal appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 340 OF 2006
IN
CRIMINAL APPEAL NO. -- OF 2006
Shri Abdul Hamid Khan Matwan ...Applicant
(Orig.Complainant)
V/s.
Mohammad Hanif Jafarali Inamdar & Anr. ...Respondents
Ms.Poonam Kardale i/b. Mr.Mandar Limaye for the
Applicant.
Mr.Y.M. Nakhawa, APP for State.
CORAM : V.M. KANADE, J.
DATED : OCTOBER 8, 2007
P.C. :-
. The applicant is challenging the judgment and
order passed by the 6th Judicial Magistrate, First
Class, Thane, who by his judgment and order dated 3rd
December, 2005 was pleased to acquit the accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act.
2. It is the case of the complainant that the
cheque was given by the respondent towards the price of
consideration for booking a flat which was being
constructed by the complainant. The trial Court after
appreciating the evidence on record has recorded the
- 2 -
finding of fact that the entire amount has been paid by
the accused to the complainant and thereafter, the
possession of the flat was also handed over. It has
come on record that the complainant was to construct a
lift and the defence of the accused was towards the
construction of the lift, the said cheque of Rs.50,000/-
was given, however, since the lift was not constructed,
the accused did not make payment. The trial Court,
under these circumstances has held that there was no
existing debt or liability.
3. In my view, no case is made out for grant of
leave. The trial Court has considered the evidence at
length. It is well settled position in law that
whenever two views are possible and the trial Court has
taken one view, then the High Court while exercising its
jurisdiction under Section 378 of the Code of Criminal
Procedure, should not substitute its own view to the
view taken by the trial Court.
4. Hence, leave is refused. Appeal is dismissed.
- 3 -
(V.M. KANADE, J.)
2 issues framed by the court
Whether leave should be granted to appeal the acquittal of the accused.
Whether the High Court can substitute its view for the trial Court's view when two views are possible under Section 378 CrPC.
2 provisions across 2 enactments
Shri Abdul Hamid Khan Matwan
Mohammad Hanif Jafarali Inamdar & Anr.
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court