Partly allowed

Vishnupant Chaburao Khaire v. Sanjay Haribhau Andhale and Another

Bombay HC19 Dec 2013APPLN/5302/2013

Case brief

AI extract

What is this about?

This Criminal Appeals Order addressed acquittals in cheque-bounce complaints where the JMFC relied on lack of proof regarding the loan's existence despite valid Civil Court decrees. The High Court allowed the appeals, admitted notices, stayed deposit orders, and directed fresh proceedings to consider the liability.

What did the court decide?

All applications allowed; appeals admitted; notice waived; deposit order stayed.

Vishnupant Chaburao Khaire Vs Sanjay Haribhau Andhale and… — Cheque Dishonour | Bombay HC (2013)

¶1

¶2

927 APPLN.5302.13 ORS

¶3

FARAD CONTINUATION SHEET No.

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.

¶5

APPELLATE SIDE JURISDICTION

¶6

CRIMINAL APPLICATION NO. 5302 OF 2013

¶7

WITH APPLN/5307/2013 WITH APPLN/5309/2013 WITH APPLN/5311/2013 WITH APPLN/5313/2013 WITH APPLN/5315/2013 WITH APPLN/5316/2013

¶8

VISHNUPANT CHABURAO KHAIRE

¶9

VERSUS

¶10

SANJAY HARIBHAU ANDHALE AND ANOTHER

¶11

Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s orders or directions and Registrar’s orders.

¶12

Advocate for Applicant : Mr. Mahesh R. Sonwane.

¶13

Advocate for Respondent No.1 : Mr. K.D.Bade Patil.

¶14

APP for Respondent / State : Mr.A.S.Shinde.

¶15

CORAM : T.V. NALAWADE, J. DATE : 19th December, 2013.

¶16

P.C.

¶17

. All these applications are filed by the original Complainant under Section 378(4) of the Code of Criminal Procedure for grant of special leave to challenge the judgment and order of acquittal given in favour of the Respondents in private complaints. Private complaints were filed under Section 138 of the Negotiable Instruments

¶18

¶19

927 APPLN.5302.13 ORS

¶20

Act by the Applicant against the Respondent. It is the case of the Applicant that as against the hand loan given by him of Rs.9 Lakh, cheques were given mostly of Rs.1 Lakh and one of Rs.2 Lakh by the accused and these cheques bounced. After following the procedure, the private complaints came to be filed.

¶21

2 The learned JMFC has acquitted the accused by making observations that no record is produced to show that the Complainant was in a position to give such hand loan. It is also observed that there is a possibility that the Complainant is doing business of illegal money lending. In view of these observations, the accused is acquitted.

¶22

3 Opportunity was given to the learned counsel appointed by the Respondent / accused to advance argument. The learned counsel for the Applicant took this Court through some record, which includes copies of the judgment delivered by the Civil Court in seven cases. These seven cases were filed by the Complainant for recovery of cheque amount and the cheques, which were used in the Civil Court are the same, which were produced before the JMFC. The Civil Court had decreed the suits in the year 2008 and the Civil Court held that the liability was proved and so, the decree of recovery is given by the Court. Nothing is produced to show that the decision of the Civil Court is set aside. The reasoning given by the

¶23

¶24

927 APPLN.5302.13 ORS

¶25

JMFC shows that the copies of the judgment and decree were produced and they were given exhibits by the JMFC. There is virtually no discussion about the decision given by the Civil Court with regard to the liability against which the cheques were given.

¶26

4 Before the JMFC, the Complainant examined himself and produced the aforesaid record. It can be said at this stage that the foundation for showing existence of liability for which the cheques were given was laid and there was a Civil Court decision to show that it was enforcible liability. These things were required to be considered. Further, the Civil Court has given decision on the defence taken by the accused in the suit that the decree cannot be made because the Plaintiff, Complainant was doing money lending business illegally, without obtaining licence under Money Lending Act. This defence is considered by the Civil Court and it is decided against the Defendant, accused.

¶27

5 The reasoning given by the JMFC shows that the accused in this case did not produce record to show that as against other persons, similar cases were filed by the present Applicants. Thus, the material points are not at all discussed and further the judgment does not show sufficient discussion about the presumption which is available under Section 139 of the Negotiable Instruments

¶28

¶29

927 APPLN.5302.13 ORS

¶30

Act. In view of these circumstances, this Court holds that opportunity needs to be given to the Complainant, Applicant to take decision in the appeal.

¶31

6 In the result, all the applications are allowed.

¶32

7 All the Appeals are admitted.

¶33

8 Notice after admission.

¶34

9 The learned counsel waives notice for the Respondents.

¶35

10 The order made by the learned JMFC against the Applicants directing them to deposit Rs.3,000/- in each matter is stayed.

¶36

[ T.V. NALAWADE, J. ]

¶37

ndm

Vishnupant Chaburao Khaire v. Sanjay Haribhau Andhale and Another

Case brief

What is this about?

What did the court decide?

Vishnupant Chaburao Khaire v. Sanjay Haribhau Andhale and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sangram Hanmantappa Chakure Vs Mahadevi Shankarappa Belure and Anr.

Mahadevi Shankarappa Belure Vs Sangram Hanmantappa Chakure and Another

The State of Mah Vs Shivaji Ananda Bharodkar and Ors.

Hakim Huzur Shaikh Vs the State of Maharashtra

Sangita Suresh Gavhane Vs the State of Maharashtra and Others

Vaijinath Gitaram Ghogre and Others Vs the State of Maharashtra