crapln1849.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLN. NO.1849 OF 2010. Mantha Urban Co-operative Bank Ltd., Mantha, Through Rameshwar s/o Raosaheb Gange, age 34 years, Occu. Service, R/o Mantha, Tq. Mantha, Dist. Jalna. .. APPLICANT. (Ori. Complainant). VERSUS 1. Pralhad s/o Parbatrao Ghule, age 40 years, occu. Agril., r/o Mantha, Tq. Mantha, Dist. Jalna. 2. State of Maharashtra. .. RESPONDENTS. ... Shri G.C. Navander, Advocate for applicant. Shri S.R. Deshpande, Advocate for R.No.1. Shri V.G. Shelke, A.P.P. for R.No.2 State. ... CORAM : S.S. SHINDE,J. 28th February, 2011. PER COURT: 1. Heard learned Counsel for the applicant and learned Counsel for respondent No.1. crapln1849.10 2 2. The learned Counsel for the applicant invited my attention to the reasoning part of the judgment of the trial Court and submitted that the findings recorded by the Court that the Bank has used pressurize tactics knowing fully well that there is no sufficient amount in the saving account of the respondent No.1 by writing the cheque which was with the Bank and presenting the same and further by getting memo of dishonour of the cheque. The Counsel for the applicant would submit that when the cheque was dishonoured, notice of the same was given to the respondent no.1. However, notice was not claimed and if the signature on the cheque is admitted by the respondent No.1, it attracts presumption u/s 20 and 118 of the Negotiable Instruments Act and, therefore, the Counsel would submit that this application deserves to allowed. 3. The learned Counsel for respondent NO.1 invited my attention to the para 5 of the crapln1849.10 3 judgment and submitted that the cheque was issued for the purpose of security at the time of receiving financial assistance from the applicant Bank. He submitted that there are two accounts of the respondent NO.1 in the said Bank i.e. loan account and saving account. The applicant Bank having knowledge that there was no balance in the saving account of the respondent No.1, wrote the cheque given for the purpose of security and presented it and got the cheque dishonour memo and tried to the respondent No.1. 4. The learned Counsel for respondent No.1 relying on the reported judgment of this Court in case of Joseph Vilangadan vs. Phenomenal Health Care Services Ltd. & Anr., reported in 2010(10) LJSOFT (URC) 64, submitted that it is now well settled legal position that if the cheque is issued only as security for performance of certain contract or an agreement and not towards the discharge of any crapln1849.10 4 debt or other liability, offence punishable under Section 138 is not made out. 5. I have given due consideration to the findings recorded by the trial Court and submissions advanced by the learned Counsel for the parties. In my opinion, on reading the reasoning recorded by the trial Court, it prima facie, appears that findings recorded by the trial Court require consideration. Nothing has been placed on record by the defence to show that the said cheque was obtained by the applicant Bank forcefully from the respondent NO.1 and there is no evidence on record to suggest that the applicant Bank has exerted pressure on the respondent No.1. In absence of it, the finding recorded by the trial court, prima facie, appears to be not sustainable. 6. I, therefore, feel it appropriate to allow this application seeking leave to appeal. crapln1849.10 5 Application is allowed accordingly and disposed of. Registry is directed to register the application as appeal. Appeal so registered is admitted. The learned Counsel for the respondent No.1 and the learned A.P.P. waive service on admission of appeal. [ S.S. SHINDE ] JUDGE. ... PLK/*