LAWS(BOM)-2006-10-155

PANDURANG EKNATH PATIL Vs. CHANDRAKANT TRIMBAK DESHMUKH

Decided On October 10, 2006
PANDURANG EKNATH PATIL Appellant
V/S
CHANDRAKANT TRIMBAK DESHMUKH Respondents

JUDGEMENT

(1.) According to Mr. Venjane, this Court had already granted leave by order dated 17-8-06 and notice came to be issued to the accused. So this appeal may be admitted.

(2.) On the other hand, learned Advocate shri Dhorde, appearing for respondent submitted that the judgment of the trial Court shows that the complainant failed to prove existence of liability. Complaint is also held not maintainable. Notice is also held not served. So under these circumstances, there is no material to admit this Appeal.

(3.) One Ajay Sharadchandra Pathak the manager of E. M. I. board filed complaint on behalf of one Pandurang Eknath Patil alleging that accused issued cheque dated 18-10-2004 for Rs. 20,000/- for repayment of the dues outstanding. Said cheque came to be dishonoured on 19-10-1994. Inspite of service of demand notice dated 28-10-94 amount is not repaid. Hence complaint came to be filed alleging offence under section 138 of Negotiable Instruments act (hereinafter referred to as the Act for short). Ajay Sharadchandra Patil who filed this complaint is not examined at the trial. However, Pandurang Patil stepped in the witness box and according to him, Ajay Pathak is having authority to file this complaint. He has admitted that he has not produced any document to show authority to Ajay Pathak to file complaint on his behalf. The cheque in question was produced at Exh. 21. The name of the payee is shown there as Pandurang eknath Patil. Exh. 20 is the deposition of pandurang Patil wherein he has stated that he has sold a plot for Rs. 4 lakhs to the accused. Out of the said amount, Rs. 20,000/- remained dues, so accused issued this cheque. As such he alleged that transaction between him and accused was a transaction in their individual capacity. In the complaint, there is no reference of any transaction between them for which transaction the cheque came to be issued. In the affidavit Exh. 50 also there is no reference of any such specific transaction. In absence of any authority in favour of ajay Pathak who was manager of E. M. I. board, it cannot be said that he can file complaint for personal transaction of pandurang Eknath Patil. In view of this position, the trial Court has rightly held that complaint filed by Ajay Pathak is not maintainable. The trial Court also recorded finding that the complainant failed to prove that this cheque came to be issued for discharge of any existing liability. In paragraph No. 10 of the judgment reasons have been recorded for coming to the conclusion that existing liability is not proved. It has been observed that the complainant in his deposition nowhere stated that this cheque bears signature of the accused. This fact is also not averred in the affidavit Exh. 50. When the cheque itself is not found issued by the accused the provisions of section 138 of the Act cannot be attracted. In paragraph Nos. 11 and 12 the Court observed that the presumption under section 139 of the Act is not available in this case as the complainant himself has not proved that for a specific transaction this cheque came to be issued. Complainant examined one Advocate who had issued a notice on behalf of complainant. Acknowledgment receipt Exh. 22 is filed on record. Neither complainant nor Advocate deposed that this notice bears signature of the accused. Because of these facts, trial Court held that notice is not served on the accused. On this ground, accused came to be acquitted. When the complaint itself is found filed by a person having no authority and the cheque is found to have not been issued for discharge of any existing liability and notice was not served on the accused this order of acquittal cannot be said to be illegal. So there is no material to admit this appeal. Appeal is dismissed. Appeal dismissed.