1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1421/2009 Sahara Nagari Patsanstha Maryadit, Aurangabad. Applicant V E R S U S Shivanand Sudhakar Chakkarwar Respondent. Shri B.R.Jaybhay, Advocate for the applicant. Shri S.S. Deshmukh, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 20 th JULY, 2010 PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant/original complainant seeking leave to file appeal against judgment and order of acquittal dated 21.1.2009 passed by learned 3 rd Judicial Magistrate First Class, Aurangabad in SCC No.2127/2005, acquitting the respondent/original accused, for the offence punishable under section 138 of Negotiable Instruments Act. 2 3. I have perused the impugned judgment dated 21.1.2009 and record and proceeding with the assistance of learned counsel for the parties. 4. The applicant is the original complainant in SCC No.2127/2005 namely Sahara Nagari Patsanstha Maryadit, a registered co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. Accused was working with the society for collecting daily amount from the investor’s i.e. he was working as a pigmy agent during the period from 18.12.2002 to 30.09.2004. It is also alleged that accused has accepted the daily investment amounts from the investors and settled the accounts of the persons who have asked for the amount and deposited the balance amount on the current account of the complainant society. It is also alleged that accused raised dispute with the Director of the society Mr. B.R. Jaybhay and as a consequence of which, account during the period 18.12.2002 to 31.01.2003 has been kept pending and at the same time the special register was maintained and amounts of the transactions other than the disputed period were finalized. Accordingly accused agreed to deposit and settle the amount and issued cheque for the amount of Rs.24,000/- on 15.1.2005. Said cheque was presented for encashment however, it is alleged that it was dishonoured and was returned unpaid for the reason “Insufficient Funds”. The complainant issued statutory notice to the accused on 31.1.2005 and same was received by 3 the accused but the accused did not comply with the requisitions contained therein. Hence, after observing necessary formalities complainant filed complaint against accused under section 138 of Negotiable Instruments Act. 5. Accused appeared. His plea was recorded and he pleaded not guilty and claimed to be tried. 6. The complainant examined two witnesses namely Tukaram Patilba Ghule and Gangadhar Patilba Ghule, whereas accused did not examine himself nor examined any defence witness but put forth his defence through cross examination of the complainant and through his statement under section 313 of Code of Criminal Procedure. 7. After assessing and appreciating evidence, learned trial judge found that accused is not guilty for the offence under section 138 of Negotiable Instruments Act and acquitted him by judgment and order dated 21.1.2009. 8. Being aggrieved and dissatisfied by said judgment and order, applicant/original complainant has preferred present application seeking leave to file appeal against the same. 9. It appears that learned trial judge has observed in the impugned judgment that “since the complainant is a registered cooperative society, it should authorize person to file complaint on its behalf following 4 provision of Section 142 of Negotiable Instruments Act. More over complaint discloses that it is signed by the President/authorized, person on behalf of the complainant. It discloses signature but it no where discloses the name of person signed on it and in what capacity either being president of authorized person. It is also observed that witness Tukaram Patilba Ghule stepped into witness box but he has not stated before the court, in what capacity, he entered into witness box. Nothing discloses in his evidence whether he is authorized person or President of complainant Sanstha and accordingly he entered into witness box. It is further observed that another witness namely Gangadhar Patilba Ghule also stepped into witness box but he has not even stated whether witness Tukaram or he himself is authorized person appointed by the Sanstha to lead evidence in the matter. It was further observed in the impugned judgment that advocate for the accused pointed out that there was no any authority letter filed by the witness, to show that they had right or authority to depose in the matter, on behalf of the complainant Sanstha. Accordingly, learned trial judge concluded that complaint is filed by a person without any authority given by the complainant Sanstha amounts to non compliance of section 142 of Negotiable Instruments Act, and consequently, held that accused was not guilty and acquitted him for the offence punishable under section 138 of Negotiable Instruments Act. 5 10. After scrutinizing and analyzing the evidence, view adopted by learned trial judge is a possible view to be adopted and reasoning given by the learned trial judge is not perverse and therefore no interference therein is warranted in the Appellate jurisdiction and hence present application deserves to be rejected. 11. In the result, present application being sans merit stands dismissed. Leave to file appeal stands refused. 12. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ..... aaa/1421.09 6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2391/2009 Sahara Nagari Patsanstha Maryadit, Aurangabad. Applicant V E R S U S Shivanand Sudhakar Chakkarwar Respondent. Shri B.R.Jaybhay, Advocate for the applicant. Shri S.S. Deshmukh, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 20 th JULY, 2010 PER COURT : 1. Heard learned counsel for the parties. 2. Since Criminal Application No.1421/2009 has been dismissed by order passed separately therein, nothing survives in the present application and therefore same stands disposed of. ( SHRIHARI P. DAVARE ) JUDGE ..... aaa/1421.09