1 WP6862/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6862 OF 2009 Sanjay s/o Kalyanrao Kadam, Aged 38 years, Occupation Pujari, Resident of Tuljapur, Taluka Tuljapur, District Osmanabad Petitioner V E R S U S 1 The President, Shri Tulja Bhavani Temple, Trust, Tuljapur or District Collector, Osmanabad. Respondents 2 The Manager (Administration), Shri Tulja Bhavani Temple, Trust, Tuljapur, Taluka Tuljapur, District Osmanabad 3 The Assistant Manager (Administration), Shri Tulja Bhavani Temple, Trust, Tuljapur, Taluka Tuljapur, District Osmanabad 4 Kalyanrao Ganpatrao Kadam, Aged 65 years, Occupation Pujari, Resident of Tuljapur, Taluka Tuljapur, District Osmanabad Mr. P.S. Chavan, Advocate for the petitioner Mr. P.V. Mandlik, Sr Counsel, instructed by Mr. Amol Gandhi, Advocate, for respondent Nos. 1 to 3 Respondent No. 4 absent CORAM : A.V. NIRGUDE, J. DATED : 5th April, 2011 ORAL ORDER : 1. Heard. 2. This writ petition is challenging the order dated 29th June, 2009, passed by the Joint Civil Judge, Senior Division, Osmanabad, on Exh.33, in Special Civil Suit No. 61 of 2005, in which the petitioner is the defendant. 3. Special Civil Suit No. 61 of 2005 is filed by the respondents for recovery of an amount of Rs.16,76,463.50 ps. The respondents’ claim in the suit is based on a contract, by which the petitioner had agreed to pay certain monthly installments to the respondents and the respondents had allowed the petitioner to take in his possession certain donation box kept in a temple. 2 WP6862/09 It is the case of the respondents that the last installment, payable in Chaitra-2002, was not paid by the petitioner. They further stated that the petitioner had given a cheque representing the amount payable as monthly installment of that month. They stated that this cheque failed when it was deposited in their bank. They further stated that they filed a criminal case against the petitioner under Section 138 of the Negotiable Instruments Act. They stated that they withdrew the criminal case and they then filed this suit. The claim is the amount of last installment. 4. In order to prove their case, they wanted to place on record the cheque in question, but they say the cheque in question was lost They wanted to prove the cheque through ‘secondary evidence’. The learned Judge, by passing the impugned order, allowed them to do so. The petitioner asserted that this order is illegal, because the respondents did not make out a case for proving the cheque through secondary evidence. Having regard to the facts of the case, I do not agree with the submissions of the petitioner. The respondents have clarified as to how they lost the cheque. On the basis of the explanation, I think, they have a convincing case for proving the cheque in question through secondary evidence. However, in this case, the cheque has to be proved independently. The proof in respect of the cheque given by the respondents in the criminal case is not enough to prove the cheque in this case. 5. The petitioner has also opposed the application saying that the respondents have purposely avoided to bring on record the cheque in question, because they are aware that the cheque was not signed by the petitioner. This objection however is not relevant for deciding the application. Taking a birds eye view of the case, the claim of the respondents in the suit depends on the various circumstances, one of which is the issuance of 3 WP6862/09 cheque. Even if they are unable to prove the original cheque, they may still be able to prove their case. In view of this, I am not inclined to disturb the impugned order. The Writ Petition stands dismissed. ( A.V. NIRGUDE, J. ) SRM/wp/6862/09/5/4/11