1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No.587/2010 ( Shri Subhash S/o Ikanath Ghule ..Vs.. Shri Rajesh S/o Madhukarrao Asegaonkar ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. H.R. Dhumale, Adv. for applicant. Mr. K.S. Narwade, Adv. for respondent. CORAM : M.N. GILANI, J. DATED : 22.7.2011. 1. This is an application seeking leave to file an appeal against the order of acquittal dated 22nd of June 2010, passed by learned Judicial Magistrate, First Class, Pusad in Summary Criminal Case No.1309/2008. 2. The appellant is the complainant who filed prosecution under section 138 of the Negotiable Instruments Act alleging that the cheque issued by the respondent in his favour for the sum of Rs.20,700/-, when presented to the bank, was dishonoured with an endorsement “insufficient funds”. 3. The issue involved before learned Magistrate was whether the document Exh.28 was a cheque as defined under section 6 of the Negotiable Instruments Act. After relying upon the evidence of the complainant’s witness, learned Magistrate came to the conclusion that the cheque was not drawn on the bank, so also the document Exh.28 was the withdrawal slip. I 2 quote observations of learned Magistrate made in paras 15 and 16 of the judgment “the Advocate for accused also argued that the document at Exh.28 is not cheque within the meaning of section 6 of Negotiable Instruments Act. The disputed cheque is at Exh.28 and the memo of Bharati Nagari Patsanstha Ltd. Pusad, Branch Shrirampur, is at Exh.29. On the closer perusal of the memo at Exh.29, it discloses that the word “cheque” erased and word “Vipatra” is written. The CW2 has admitted in her cross that Vipatra is not a cheque but is only a withdrawal slip in the standard form. The said witness further admitted that Bharati Nagari Patsanstha Ltd. Pusad, is a Co-operative Society and it can not issue cheques unless permission is given by Reserve Bank of India. It is the evidence of CW2 that till today there is no permission in favour of Bharati Nagari Patsanstha Ltd. Pusad, for issuing cheques or cheque books to its members or account holders. The Advocate for accused has relied upon one judgment of Hon’ble Bombay High Court, Nagpur Bench, given in Criminal Application no.1643 of 2006. In the above judgment of Hon’ble High Court, relying on the evidence of the Manager of the drawee bank it is laid down that if document on which prosecution launched is not cheque then acquittal of accused is proper. In the present case the Manager of the Credit Society on which cheque was drawn herself has deposed that the document at Exh.28 is not cheque and also admitted that said Society is not having permission from the Reserve Bank of India to issue cheque books.” 4. In Criminal Application No.1643/2006 learned Single Judge of this Court had taken a similar view and held that the “instrument, on the 3 basis of which the prosecution was launched, being not a cheque at all, the acquittal of the accused was justified.” On perusal of the evidence of the witness examined by none other than the complainant, on which learned Magistrate has rightly placed reliance, it is clear that Exh.28 is a withdrawal slip and not the cheque and does not fall within the definition of “cheque” occurring under section 6 of the Negotiable Instruments Act. 5. Learned counsel for the applicant/complainant relied upon the decision in case of Punjab and Sindh Bank V/s. Vinkar Sahakari Bank Ltd. and others reported in 2001 (4) Mh.L.J.895. The controversy before Their Lordships of the Supreme Court was whether pay order is a cheque and whether it answers to the definition of ‘Bill of Exchange’ occurring under section 5 of the Negotiable Instruments Act. 6. Apart from the fact that Exh.28 is not cheque, the Bharti Nagari Sahakari Patsanstha Limited, Pusad cannot be termed as a drawee bank. It is merely a Credit Co-operative Society and not the bank. However, there is no need to enter into this controversy. Suffice it to say that learned Magistrate was right in dismissing the complaint after observing that Exh.28 is not a cheque. In that light of the matter, leave to file an appeal cannot be granted. 7. Leave refused. JUDGE Tambaskar.