1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No.265 of 2010 IN Criminal Application No. 264 of 2010 IN Criminal Application No. 2621 of 2007 [Subhash Maganlal Khakkar Vs. Ramesh Baburao Khade] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr R.K. Thakkar, Adv., for the applicant. ----- CORAM : A.H. JOSHI, J. DATE : 13th April, 2010. Heard. Accepting the reasons contained in the application to be good and sufficient, delay of 450 days caused in filing of application for restoration is condoned. Civil Application is allowed. No costs. Judge |Hedau| 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 264 of 2010 IN Criminal Application No. 2621 of 2007 [Subhash Maganlal Khakkar Vs. Ramesh Baburao Khade] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr R.K. Thakkar, Adv., for the applicant. ----- CORAM : A.H. JOSHI, J. DATE : 13th April, 2010. Heard. Accepting the reasons contained in the application to be good and sufficient, application for restoration is allowed. Criminal Application No. 2621 of 2007 is restored. No costs. Judge |Hedau| 3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 2621 of 2007 [Subhash Maganlal Khakkar Vs. Ramesh Baburao Khade] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr R.K. Thakkar, Adv., for the applicant. ----- CORAM : A.H. JOSHI, J. DATE : 13th April, 2010. 1. This is an application for condonation of delay of 41 days caused in filing of application for leave to appeal. 2. This Court is of the view that if there be some merit in the appeal, in that event, notice on application for condonation of delay be issued; otherwise it will amount to vexing the respondent even in the appeal having no merit. 3. Learned Adv., for the applicant has, therefore, advanced submissions on admission- hearing of appeal. 4. Heard. 5. The appellant-complainant had filed a Criminal Complaint Case under Section 138 of Negotiable Instruments Act, complaining that:- 4 [a] The applicant had advanced a loan of Rs.10,000-00 to the respondent. [b] In order to repay the said advance of Rs.10,000-00, the respondent-accused had given a cheque bearing No. 0312460 dated 20 th May, 2005. [c] When the cheque was presented for collection after the due date, it was dishonoured. 6. In his defence, the accused-drawer had denied issuance of the cheque for Rs.10,000/- and pleaded that the amount, which was borrowed, was only Rs. 3,500-00. 7. After discussion of evidence, the Trial Court found that:- [a] Being a transaction of loan, which was denied, it was the duty of the complainant to prove that the cheque was issued towards discharge of existing debt. [b] In absence of proof of liability, the criminal liability cannot be fastened on the accused. 8. The findings recorded by the learned 5 Magistrate are based on appreciation of evidence. 9. It is not shown that any material evidence is not considered. 10. In the result, this Court finds that the appeal has no merit and, therefore, application for condonation of delay and appeal are liable to be dismissed, and are dismissed. Judge |Hedau|