1 Meera IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1392 of 2009 Sanjay Arun Uke ..Applicant Vs. Sandeep Ratnakar Patil & Anr. ..Respondents Mr. Y.A.Sakhare i/b M/s. Yes Legal for the Applicant Mr. V.B.Tapkir for Respondents Mrs. M.H.Mhatre APP Coram: A.R.Joshi, J Date : 30th June, 2009 P.C. 1. Heard rival submissions for sometime. 2. It is the leave petition preferred by Complainant against the acquittal of Respondent No.1 in the matter of offence punishable u/s 138 of Negotiable Instruments Act. In fact JMFC, Pune, convicted Respondents and sentenced him for 6 months imprisonment and fine of Rs.80,000/-. The said conviction was challenged by the Respondent before sessions Judge Pune, in Appeal and the said Appeal was allowed, reversing conviction. 2 The said order of Session court Pune is challenged in the present Appeal with leave Petition. 3. It is the matter of dishonour of cheque for Rs.72,770/- Allegedly the said cheque was given by the Accused towards incentives to the Applicant being the employee of the Respondent. 4. It is the factual position that the said dishonoured cheque was presented twice for encashment, however, was returned dishonoured. On first dishonour the intimation was given to Respondents on 05.08.2002, asking him to make payment or otherwise complainant would redeposit the cheque. Thereafer, second dishonour occured for the reason “stop payment”. Thereafter, second demand notice was sent to Respondents on 19.08.2002, asking for the payment but invain. Incidentally it may be mentioned that prior to such second demand notice, on 14.08.2002 Respondents filed a complaint with the Pune, Swargate police station for alleged theft of his cheque by the Complainant. In the said complaint present complainant was arrested as then Accused for stealin the cheque. Admittedly the said case ended in acquittal before JMFC, Pune on the ground that present Respondent then complainant didnot lead any evidence. Reportedly as stated on behalf of present Respondent NO.1, Appeal against such acuqittal in the theft case is preferred before this court with the leave petition and the same has already been admitted. 3 5. Considering the above factual position and considering that the Sessiions Court, Pune held the defence of present Respondent as to theft of the cheque, acceptable, there was acquittal of present Respondent No.1 on the premise that there was no legal enforceable liability and no case could lie on the stolen cheque. In the opinion of this court there is a triable issue in the present matter whether in fact the theft of the cheque has been established by the present Respondent No.1 and in that event it would be in the fitness of the situation and in order to have judicial harmony, present Appeal which is going to be admitted, is required to be heard alongwith the Appeal which is filed by the Respondent against the present Complainant in the matter of theft of cheque. 6. In view of the above leave Petition is allowed. Appeal is admitted. Call for records and proceedings. Appeal No.__________ to be tagged and heard together with this Appeal. (A.R.Joshi, J)