1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Criminal Application No.1524 of 2009. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ 1. Heard. 2. The application is filed for leave to appeal. The applicant is the Cooperative Bank. It appears that the loan transaction was admittedly entered into between the parties. The issuance of the cheque in question was not disputed. The fact that the cheque was dishonoured and demand notice was served was also not disputed. No reply was given to the demand notice. The learned Magistrate came to the conclusion that there was no substantial reason for the Respondent No.1 to issue the cheque in question at the material time. Considering the admissions of the witness examined on behalf of the petitioner, the learned Magistrate observed that probably the cheque was obtained during course of the recovery proceedings. What transpires from the impugned judgment is that the flat of the Respondent No.1 was attached and his vehicle was also seized during course of the recovery proceedings. The clinching question is whether the cheque was issued in order to discharge the legal liability to repay the amount. Whether the cheque was obtained during course of recovery proceedings or whether it was voluntarily given by the Respondent No.1 is a matter of fact which is required to be determined on the basis of attending circumstances. The learned Magistrate seems to have unnecessarily dealt with the question pertaining to certain charges of xerox, postal expenditure, photo charges etc. and came to the conclusion that excessive amount was shown to be due. It appears that after issuance of cheque there was one time settlement. The matter requires consideration on the basis of material which is placed on record. Consequently, leave to appeal is granted. 3. Admit. 4. Mr.R.S. Deshmukh, learned advocate waives service for the Respondent No.1. 5. Smt. Y.M.Kshirsagar, learned A.P.P. waives service for the Respondent No.2. 6. The appellant to file private paper book within ten (10) weeks. 7. Final hearing of the appeal is expedited. 8. Call R & P. (V.R.KINGAONKAR,J.) Dt.26.08.2009. asp/office/Crapp1524.09