BHAUSAHEB DEORAO PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Counsel appearing for the appellant was absent on the last date of hearing. Record reveals that the Counsel for the appellant has not collected the paper-book. By order dated 08-9-2017, the appellant was directed to pay costs of Rs.201/- and the appeal was directed to be listed in the week commencing from 18-9-2017. The appellant has not paid the costs and there is no appearance on behalf of the appellant.

(2.) The challenge is to the judgment and order dated 11-4-2005, delivered by the learned Judicial Magistrate First Class, Digras in Criminal Complaint Case 2152/2004, by and under which respondent 2 is acquitted of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 3 apeal393.06 "Act"). The complainant is a co-operative society. The gist of the complaint under Section 138 of the Act is that respondent 2 (hereinafter referred to as the "accused") took the factory of the complainant on lease for the year 2000-01 on rent of Rs.2,24,888/-. The accused also agreed to incur expenses for maintenance, machinery repairs, electricity charges, labour payments, insurance charges, etc. in addition to the rent. The complaint states that as on 30-6-2001 an amount of Rs.1,68,907/- was recoverable from the accused and on that day the accused issued cheque 14396 for Rs.1,00,000/- as part payment. The said cheque was dishonoured, statutory notice was issued, since the accused did not comply with the notice, the complaint was instituted.

(3.) The complainant examined one Gunwant Dhaye, the Manager of the complainant as C.W.1. He has deposed that as per the agreement, the accused is liable to pay Rs.1,68,907/- to the complainant as on 30-6-2001, that on the same day the cheque was issued as part payment and was subsequently dishonoured for want of sufficient funds in the account of the accused. In the cross- examination, C.W.1 admits that the complainant had asked the accused to furnish bank guarantee of Rs.1,00,000/- and since the 4 apeal393.06 accused could not furnish the bank guarantee, he gave post-dated cheque of Rs.1,00,000/- dated 30-6-2001. C.W.1 has further deposed that the amount recoverable as on 30-6-2001, even according to the resolution Exhibit 46 of the complainant society, is Rs.1,26,845/- and not Rs.1,68,907/-. C.W.1 further admits the payment of Rs.7,500/- on 22-12-2000, Rs.60,000/- on 09-2-2001, Rs.24,000/- on 13-1-2001 and Rs.7,000/- on 28-4-2001 by the accused. He has admitted receipt of total amount of Rs.99,500/- from the accused and has further admitted that he is not in a position to tell as to how much amount is recoverable from the accused and how much amount has been paid by the accused. It is further evident from the evidence of C.W.1 that the accounts between the complainant and the accused were not settled. C.W.2 who is the President of the complainant has admitted that the cheque of Rs.1,00,000/- was given on 30-4-2001 in lieu of bank guarantee. He has admitted that as on 30-4-2001 nothing was due and payable by the accused and then C.W.2 has volunteered that since accounts were not settled as on 30-4-2001, the amount due as on 30-4-2001 was not known.