1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 303 OF 1998 Shriram S/o Saharam Bade Age 35 years,Occup.Agril., R/o Vidyanagar Paithan,Ta.Paithan District Aurangabad. ...Appellant. (Ori. Complainant) VERSUS. 1. Ramchandra S/o Gopikrushna Darakh,age 54 years,occup. Business R/o Quick Couriers, (Sunil Furnitures) Near Hotel, Rajput,Mondha Road, Aurangabad. 2. The State of Maharashtra, (Copy to be served on the Public Prosecutor,High Court of Bombay at Aurangabad. ...Respondents (No.1 Ori.Accused) ------------------------------------------ Mr. P.B.Vikhe Advocate holding for Mr. L. B.Pallod Advocate for the appellant. Mrs. A.V.Gondhalekar, A.P.P.for the respondent no.2 ------------------------------------------ (CORAM : V.R.KINGAONKAR, J ) DATE : 7th September,2009. ORAL JUDGMENT : 1. Taking exception to the judgment of acquittal rendered by learned Judicial Magistrate (F.C.), Paithan in S.C.C.No.249 of 1995, the original complainant has 2 preferred this appeal. 2. The appellant’s case, in nutshell, is that due to acquaintance with respondent no.1(Accused) he advanced hand loan of Rs.21,000/- on 13th November,1994 to the latter. The respondent no.1 lateron issued cheque for Rs. 21,000/- drawn on Punjab Nationalised Bank (PNB) Branch at Aurangabad in discharge of the liability to re-pay the hand loan. The cheque was presented for encashment on 27.11.1995. The Punjab Nationalised Bank Branch at Aurangabad returned the cheque with an endorsement that it could not be encashed due to shortage of funds. The respondent was approached and the said fact was brought to his notice. The respondent assured to deposit the amount in the bank and instructed him to present the cheque after 15 days. So, it was again presented on 23rd February 1995 to the Bank.. The cheque was again dishonoured. The appellant then issued demand notice dated 4th March, 1995,which was duly served on the respondent. Consequently, the criminal case was instituted on the private complaint filed by the appellant. 3. The respondent denied truth into the accusations. His case in the trial court is that he had paid Rs.10,000/- to the appellant and was ready to pay remaining amount of Rs. 11,000/-. He submitted that the endorsement was on the cheque itself about the payment of Rs.10,000/-. Therefore, he was not liable to pay the entire amount as and when the cheque was presented to the Bank. Thus, the defence of the respondent was that the cheque was not issued in discharge of the liability for repayment of Rs.21,000/-. 4. The appellant examined himself and adduced evidence of 3 two other witnesses including Bank employees. On merits, the learned Magistrate came to the conclusion that there was grain of substance in the defence of the respondent. The acquittal was rendered mainly for the reason that the appellant failed to establish the issuance of cheque in order to discharge the existing debt or liability. 5. Heard P. B. Vikhe Advocate holding for Mr. L. B. Pallod Advocate for the appellant. None appeared for the respondent no.1. Mrs. A. V. Gondhalekar, A. P. P. appeared for the respondent no.2. 6. It appears from the record that the respondent no.1 gave reply to the demand notice vide exh.41. In the reply notice itself, he asserted that part payment to the tune of Rs.10,000/- was already made by him. He also mentioned in the reply notice that the endorsement was specifically made on the cheque in question regarding part payment of Rs.10,000/-. The cheque in quetion (Exh.39) would show that there is endorsement about the payment of Rs.10,000/- to the appellants. In other words, the subsequent events did reduce liability of the respondent by Rs.10,000/-. He was liable to pay only Rs.11,000/- out of the amount of hand loan. Needless to say the cheque for Rs.21,000/-which was exceeding debt amount as such on the date of presentation in the Bank. The witnesses examined by the appellant, namely, P.W.2 Damodhar Shankar Bhusari and P.W.3 Ejaj Ahemad Ismail Pathan, who are the employees of the bank, stated that they would not have made payment of the amount shown in the cheque in question. They stated that, the endorsement of payment done is of Rs.10,000/- appearing on the cheque and is certainly for the payment of the amount shown in the negotiable instrument. For the offence 4 punishable under section 138 of the Negotiable Instruments Act, it is necessary to establish that, the dishonour of cheque was due to fault of the drawee. Considering the peculiar circumstances of the present case I find it difficult to interfere with the impugned judgment of acquittal. 7. In the result, the appeal fails and is dismissed. ( V.R.KINGAONKAR, J. ) MTK/cri.APL.303.98