1 Cri.A.762.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 762 OF 2011 Vijay Marotirao Dake, Age: 59 Years,Occup.: Business, R/o Satsang Madhuban Housing Society, Sangamner,Ta.Sangamner, District Ahmednagar. ...APPLICANT VERSUS Shailesh Bhanudas Wadekar, Age: 37 Years,Occup.:Business, R/o: 493 Vaishali, Ashok Stambh, Near J.S.Runtha High School, Nashik, District Nashik. ...RESPONDENT ... Mr.S.K.Shinde,Advocate for Applicant. Mr.V.Y.Bhide,Advocate for respondent. ... CORAM: U.D.SALVI, J. DATE : 26TH SEPTEMBER,2011 PER COURT : . Heard. Perused application and record. 2. Acquittal of the accused Under Section 138 of the Negotiable Instruments Act, recorded by the learned Judicial Magistrate First Class-3, 2 Cri.A.762.11 Sangamner, District Ahmednagar, in STC No. 103 of 2009 has prompted the present application seeking leave, under section 378(4) of the Code of Criminal Procedure, 1973. 3. The complainant and the accused were partners of the Firm, namely, “M/s. Agnihotra Agencies, Nashik.” A case Under Section 138 of the Negotiable Instruments Act, bearing Case No.1838/S.S./2005 filed against the said Firm, in the Court of Metropolitan Magistrate Mumbai, resulted into conviction of its partners, the complainant and the accused, and made them liable to pay the compensation of Rs.3,00,000/-(Rupees Three Lakhs) to the complainant, in the said case. In the appeal, filed against the said conviction it become imperative to deposit the said Rs. 3,00,000/- (Rupees Three Lakhs), the compensation awarded in the said case. Each of the partner of the said Firm were expected to shell out Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) each, for arranging this deposit in the 3 Cri.A.762.11 Criminal Appeal. 4. According to the complainant, he carried burden of the accused, as the accused did not have sufficient funds at the material time to contribute to his share of liability of Rs. 1,50,000/-(Rupees One Lakh Fifty Thousand); and therefore, the accused had issued a cheque of Rs. 1,50,000/-(Rupees One Lakh Fifty Thousand) drawn on Nashik Zilla Mahila Sahakari Bank, Nashik in favour of the complainant as a security for the repayment of monies invested by the complainant towards his share of the liability. From the complaint, it reveals that an agreement dated 05.03.2008 regarding the fact of issuance of the said cheque, issued as security for payment of the amount mentioned therein was executed by and between the complainant and the accused. The said cheque was to be returned on repayment of the said amount, which the complainant has deposited in the Criminal Appeal for and on behalf of the accused. However, it appears that the said cheque was 4 Cri.A.762.11 dishonoured giving rise to the present Case-STC No.103 of 2009 lodged in the Court of Judicial Magistrate First Class-3, Sangamner, District Ahmednagar. 5. Perusal of the evidence reveals that the respondent-accused succeeded in bringing on record the fact of compromise in the said Criminal Appeal for Rs. 2,00,000/- (Rupees Two Lakhs), thereby reducing the liability of each of the partners of the firm, namely, “M/s Agnihotra Agencies” to Rs.1,00,000/- (Rupees One lakh) on each. The complainant in his cross-examination denied that according to the said agreement the cheque was to be returned on payment of the amount. He, further denied that the accused had from time to time paid amount of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) to him towards share of his liability under the said compromise and the expenses incurred for defending the said Firm in the Appeal. The fact, however, remains that liability of the respondent/accused was not more than Rs. 5 Cri.A.762.11 1,00,000/-(Rupees One Lakh) as his share of the compensation finally settled in the said Criminal Appeal. 6. The following observations made by the learned trial Court are sufficiently eloquent to reveal the merit of the defence: “when the liability of the accused is of Rs.1,00,000/-(Rupees One Lakh) only and the complainant obtained cheque of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) then certainly this amount cannot be said as legally recoverable from the accused.” “ The complainant admitted during the course of cross examination that the Cheque Exhibit 27 was issued by the accused on 05.03.2008 by way of agreement Exhibit 34. He denied that the said cheque was undated and issued by the accused towards security. In further cross examination complainant admitted that the compromise in Criminal 6 Cri.A.762.11 Appeal was arrived by way of making payment of Rs.2,00,000/- (Rupees Two Lakhs)and responsibility of the accused was to make payment of Rs. 1,00,000/-(Rupees One lakh)....”. 7. When liability of the accused is of Rs.1,00,000/- (Rupees One lakh) only the cheque amount of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand), cannot be said to be legally recoverable from the accused. Leave is, therefore, refused and the application stands disposed off finally. Sd/- [ U.D.SALVI J.] MTK