( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 661 OF 2010 Terna Shetkari Sahakari Sakhar Karkhana Ltd., Ternanagar (Dhoki) APPLICANT VERSUS Sudam s/o Shankar Mundhe and another. RESPONDENTS .... Mr. S.B. Ghute, advocate for the applicant. Mr. S.R. Kedar, advocate for the respondent No.1. Smt. B.R. Khekale, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd September, 2010] PER COURT : 1. This is an application seeking leave to appeal against the judgement of acquittal rendered in S.C.C. No. 309/2005 for offence punishable under section 138 of the Negotiable Instruments Act. 2. Heard learned counsel for the parties. 3. The fact that the respondent issued the cheque in question is not in dispute. His defence before the trial ( 2 ) Court that there was no existing liability and that the cheque was issued at the time of giving the Deed of Guarantee in respect of the advance paid to one Bhagwat Mundhe. 4. The learned Judicial Magistrate acquitted the respondent for the reason that the complaint application did not indicate details of the payment made to Bhagwat Mundhe and the other aspects of the internal agreement between the applicant and said Bhagwat Mundhe in respect of the advance amount. The learned Magistrate also noticed that the complainant failed to prove as to what were the efforts made for recovery from said Bhagwat Mundhe or another guarantor by name Madhukar Mundhe. One cannot be oblivious of the fact that it was summary trial and, therefore, details of the pleadings were not necessarily required to be given by the complainant (applicant). It appears prima facie that the cheque was issued for Rs. 94,760/- on 11-08-2004. It further appears that the respondent No. 1 was the guarantor to the borrower by name Bhagwat Mundhe. It further appears that in 2000-2001, said Bhagwat Mundhe had obtained advance of Rs. 94,760/- from the applicant - Sugar Factory. Considering the liability of the guarantor, which is statutory one, may not abate unless the statutory conditions are satisfied as per the ( 3 ) provisions of Section 143 of the Contract Act. In view of these aspects of the matter, the impugned judgement requires afresh consideration. Therefore, the leave to appeal is granted. The application is allowed. [V.R. KINGAONKAR] JUDGE NPJ/criapln661-10