PRABHAKAR S/O. JANARDHAN KALE Vs. SMT. SADHANA W/O. ASHOK URKUDE
HIGH COURT OF BOMBAY (AT: NAGPUR)
Prabhakar S/O. Janardhan Kale
Smt. Sadhana W/O. Ashok Urkude
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ROHIT B.DEO,J. -
(1.) The appellant is aggrieved by the judgment and order dated 19.5.2006 delivered by 2nd Joint Civil Judge Junior Division & Judicial Magistrate First class, (Special Court), Nagpur in Summary Criminal Case 4111 of 2005, acquitting the respondent (hereinafter referred to as "the accused") of offence punishable under section 138 of the Negotiable Instruments Act, 1881("Act" for short.
(2.) The appeal was called out for hearing on 30.5.2017 and then on 8.9.2017. There was no appearance on behalf of the appellant or the respondent on both the dates of hearing. This Court directed the appellant to pay costs of Rs. 201/- and adjourned the hearing to week commencing 25.9.2017. The appeal was called out on 30.9.2017 and again there was no appearance either for the appellant or for the respondent. The appeal was then called out on 12.10.2017, the learned counsel for the appellant undertook to collect the paper book and to deposit the costs. Although, the learned counsel for the appellant did deposit the cost, the paper book was not collected and when the appeal was called out for hearing on 30.10.2017, again, there was no appearance on behalf of both the appellant and the respondent. This Court adjourned the hearing to 6.11.2017 and since there was no appearance on behalf of the appellant or the respondent, requested the learned Additional Public Prosecutor Ms. Trupthi Udeshi to assist the Court.
With the able assistance of the learned Additional Public Prosecutor Ms. Trupthy Udeshi, I have scrutinized the record and this appeal is being decided on merits.
(3.) The appellant (hereinafter referred to as "the complainant) preferred a complaint under section 138 read with section 142 of the Act, inter-alia contending that he was introduced to the accused by a relative Smt. Vishakha Dhanvijay. The said relative is a friend of the accused, is the averment in the complaint. The accused is engaged in business of ready made garments under the name and style M/s. Sadhana Collection. The accused needed financial assistance to manage and expand the said business and visited the house of the complainant alongwith Mrs. Vishakha Dhanvijay in the month of June 1999 and requested for financial assistance of Rs. 60,000/-. The complainant gave the accused Rs. 60,000/- in cash as hand loan on 28.6.1999 which amount the accused promised to repay within two years, is the averment in the complaint. The complainant has averred that he arranged the said amount by obtaining loan from a cooperative society.
The complainant contends that between 1999 to 2001, the complainant borrowed various amounts from time to time aggregating Rs. 4,88,000/-. The accused issued cheque 928874 dated 8.5.2003 for Rs. 4,50,500/- towards refund of the said amount since the accused had already repaid Rs. 20,300/- by cheque/s and Rs. 17,200/- by cash from time to time during the period 2001-2002. The said cheque was presented on 9.5.2003, the cheque was returned with endorsement "account closed". The complainant issued the statutory notice, since there was no compliance with the notice, the complainant set in motion proceedings under the Act. ;
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