1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.7794 OF 2005 Rayat Sarva Seva Sanstha. ... Applicant. V/S. B.B. Gursale & Anr. ... Respondents. Mr. Sarang Aradhye i/b. Rajshekhar V. Govilkar for the Applicant. Mrs. A.A. Mane, A.P.P. for the State. CORAM : K.U. CHANDIWAL, J. DATE : 28th JULY 2008. P.C. :- Heard learned Advocate. Based on agreement dated 11.8.1999 for supplying bullock carts with labourers, the complainant advanced an amount of Rs.13,50,000/- to the accused in the form of cash and cheques for which several vouchers were executed by the Accused. Since terms 2 in the agreement were not complied the notice was issued. Consequently, the Respondent issued a cheque for Rs.4,25,000/- dated 10.5.2002, on presentation the same was dishonoured with reasons “funds insufficient”. The legal procedure was followed and a complaint under Section 138 of Negotiable Instrument Act against Respondent No.1 was moved before the J.M.F.C. No.7, Pune at Pune being S.T.C. No.825 of 2002. The learned J.M.F.C. after recording the evidence convicted Respondent No.1 for the offence punishable under Section 138 of Negotiable Instrument Act and directed to pay compensation of Rs.4,25,000/- to the Appellant in the light of Section 357 (3) of Cr.P.C. The Accused being dissatisfied with the order of conviction in Criminal Appeal No.127 of 2004 before the Sessions Judge, Pune and by order dated 15.9.2005 the learned Sessions Judge allowed the Appeal of Respondent No.1 (Original Accused). The grounds for disbelieving the complainant's case is ennumarated in paragraph 7 of the Judgment to the effect that the witness PW-1 Maruti Choudhary is the employee of sugar factory. However, in the absence of any positive evidence the learned Sessions Judge noticed that he could not file the complaint or could not adduce any evidence 3 in this regard. He has observed, the complainant could not prove passing of resolution in proper manner, as he simply produced the true copy of the resolution. One of the findings of the learned Sessions Judge in parapraph 7 is "there is nothing on record to show that when the resolution was passed, the witness was present". These aspects warrant hearing. Leave granted. Appeal is admitted. Action under Section 390 of Cr.P.C. (K.U. CHANDIWAL,J.)