KISHAN SHANKARRAO GHODKE Vs. NARESH AMRUTLAL SHAH

JUDGEMENT

(1.) HEARD Mr.R.S.Deshpande, learned Counsel for the applicant and Mr.Yogesh Deshpande, learned Counsel for the respondent. Perused the copies of the judgment and other relevant documents.

(2.) THE applicant has filed this application seeking leave to prefer appeal against the order of acquittal in the complaint under section 138 of Negotiable Instrument Act filed by him.

(3.) IN support of his complaint, in examination ' in - chief the complainant filed his affidavit. In cross-examination he stated that he was not acquainted with Rakesh Prabhakar Lomre, who was one of the executants of the document dated 6-11-1998. He also admitted that in 1995 certain cheques were given to him and those cheques were of Anand Automobile and Viswas Automobile. Those were partnership firms. Both these shops were closed about 5 years before. He admitted that on 8/7/2001 he had withdrawn amount of Rs. 55,000/- from the account of the accused by presenting a cheque. It was the defence of the accused that no cheques were issued on behalf of the firm, which were not in existence they are the cheques were issued in discharge of any debt or liability. According to him, those two cheques were misused. The learned trial Court accepted this plea mainly on the ground that Ramesh Lomre and the accused had jointly executed the agreement in 1998 but in spite of that the complainant denies that he was acquainted with Rakesh Lomre. In view of his admission that certain cheques were with him since 1995, it appears that one of the cheques was used for withdrawal of the amount of Rs. 55,000/- in 2001. The learned trial Court observed that if out of the dues of Rs.1 lakh, amount of Rs.55,000/- was already paid or withdrawn, there was no reason for the accused to issue two more cheques of total amount of Rs.1,50,000/- in 2004. In view of this, the trial Court found that the applicant appears to have misused the cheques and failed to prove that the cheques were issued to discharge any existing liability.