Allowed

Ravindra Bhagwanrao Gaikwad v. Pandit Yashwant Avate and Anr.

Bombay HC20 Jul 2012APPLN/200/2012

Case brief

AI extract

What is this about?

The High Court granted leave to appeal against acquittal in a cheque bounce case, distinguishing the lower court's reliance on *Sanjay Mishra* and *Krishna Janardhan Bhat* by following *Sri Mohan* to clarify the scope of Section 139 presumption.

What did the court decide?

Leave to appeal allowed; application for CPLR admitted; call for records and process issued under Section 390 CrPC.

Ravindra Bhagwanrao Gaikwad Vs Pandit Yashwant Avate and Anr. — Cheque Dishonour | Bombay HC (2012)

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Appln 200-12.odt

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO.200 OF 2012

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Ravindra Bhagwanrao Gaikwad.Applicant

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 V/s.

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Pandit Yashwant Avate & anr..Respondents

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Mr.I.M.Khairdi, Advocate, for the Applicant
Mr.Y.M.Nakhwa, APP, for Respondent No.2 - State

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CORAM:R.C.CHAVAN, J.
DATE:20TH JULY, 2012

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P.C.

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.Heard the learned counsel for the

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respective parties.

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2.This is an application for leave to file
an appeal against acquittal of respondent No.1
rendered by the learned Judicial Magistrate F.
C., Solapur for the offence punishable under
Section 138 of the Negotiable Instruments Act,
1881. The learned Magistrate seems to have
relied on Judgment in Sanjay Mishra vs. Kanishka

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Kapoor @ Nikki & Anr., reported in 2009(5)

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Page 1 of 4

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Appln 200-12.odt

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Bom.C.R.464, which in turn is based on the

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decision of the Supreme Court inKrishna

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Janardhan Bhat vs. Dattatraya G. Hegde, reported
in 2008 ALL MR (Cri.) 1164 SC. The learned
Magistrate relying on these Judgments in para 20
observed that presumption under Section 139 of
the Negotiable Instruments Act does not extend
to legally enforceable debt or liability which is
not correct law as held in Rangappa vs. Sri
Mohan, reported in 2010 Cri.L.J.2871. The
learned Magistrate seems to have expected the
complainant to prove that the amount under the
cheque was, in fact, paid by the complainant to
the accused or was due from the accused. The

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learned Magistrates seems to be overlooking the
fact that the cheques are negotiable
instruments. Just as cheque passes hands, the
title gets clearer unlike the instrument of
title in respect of a property which continues
to carry the defect, if any, in the initial
transaction. With every negotiation the

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Page 2 of 4

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Appln 200-12.odt

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presumption in favour of holder goes on getting

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stronger. This is the foundation for the
instrument being negotiable otherwise no
businessman would ever accept the cheque.
Therefore, to expect that holder of the cheque
must prove the transaction which was foundation
of the cheque would hit at the very
negotiability of the instrument. View taken by
the learned Magistrate is required to be

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examined. Leave granted. Admit. Call for R &
P. Action under Section 390. Needless to say,
action under Section 390 means that the learned
Magistrate may cause the accused to be produced
before him by appropriate process and take
security from them for their appearance in the
Appellate Court. If the accused appear on their
own, the learned Magistrate need not wait for
process to be issued or served upon the accused
but shall admit them to such bails as he may
deem fit.

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Page 3 of 4

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Appln 200-12.odt

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Page 4 of 4

Ravindra Bhagwanrao Gaikwad v. Pandit Yashwant Avate and Anr.

Case brief

What is this about?

What did the court decide?

Ravindra Bhagwanrao Gaikwad v. Pandit Yashwant Avate and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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