SHRIKRISHNA SHANKAR SHEDGE Vs. SATISH C BHATEWARA

JUDGEMENT

(1.) The applicant-appellant challenges the judgment and order dated 26.11.2008 of the learned Judicial Magistrate, First Class, Pimpri, Pune, acquitting the accused for the offence punishable under section 138 of the Negotiable Instruments Act. The applicant was the Complainant in C.C.No. 3333/2005 before the learned Magistrate. The complaint was filed upon the dishonour of the cheque dated 15.3.2005 by respondent No. 1 herein, who was the accused in the complaint. The cheque was issued upon the transaction dated 24.1.2005 between the parties for purchase of certain goods, at which time the cheque was issued.The delivery of the goods ordered under the purchase order dated 24.1.2005 is not shown. Hence, even if the purchase order was placed, it is not shown that a contract actually took place by delivery of goods. The supply, which was effected, is not shown. The cheque was sought to be realized but was dishonoured. The Notice of Demand remained unreplied. The complaint came to be filed.

(2.) In the complaint, the accused shows that no delivery was effected. The complainant could not prove that he had effected delivery since the delivery challan duly signed by the accused was not produced. The contract for which the cheque came to be passed not having been shown to have taken place, the presumption under the cheque came to be rebutted. It was then for the complainant to show how the transaction was actually effected. That has not been shown since the delivery made by him has not been proved. Hence, the cheque remained to be a cheque for security without consideration having been passed.

(3.) The cross-examination of the complainant shows that since January or February 2005, he had closed his business. In March 2005, he deposited the cheque which came to be dishonoured. That cheque is, therefore, shown to be without consideration. The presumption is duly rebutted. Hence, the complaint has been rightly rejected.