1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 242 of 2009 IN Criminal Appeal No.44 of 2009 [Vinod N. Marghade Vs. Abdul Aziz Sk. Habib] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Ashish Chaware, Adv., for the appellant. ----- CORAM : A.H. JOSHI, J. DATE : 06th April, 2010. 1. This is an appeal against acquittal. 2. Learned Judicial Magistrate First Class, Achalpur has acquitted the accused of offence punishable under Section 138 of the Negotiable Instruments Act. 3. According to complainant-appellant, the accused had allegedly issued a cheque dated 8th May, 2003 towards payment of Soyabean purchased by the accused from the complainant, which was dishonoured. 4. The accused has come with a defence that he had some transaction with Jagdish Kedia and Nandkishor Kedia relating to sale of a 2 vehicle and a stamp paper and cheques were given to him. 5. The accused has also brought on record a complaint [Exh.108] dated 10th April, 2003 disclosing that certain cheques are in possession of said Kedias. 6. Learned Magistrate was impressed with the fact that the said complaint referring to cheque, subject-matter, is antecedent to the cheque in question. 7, This fact was supported by additional circumstance, inter alia, that complainant has not proved that he is an agriculturist and has sold the agricultural produce to the accused and that the cheques were given in relation to payment of the same. 8. Based on totality of appreciation of evidence, the learned Magistrate found that the evidence brought by the complainant was not adequate to prove existence of liability towards which the cheque was issued and hence ordered acquittal. 9. After hearing learned Adv., for the appellant and perusing the Judgment, this Court is of considered view that what learned Trial Court has done is on appreciation of evidence, and it has taken a possible view in the matter. 10. In the result, the order of acquittal 3 cannot be regarded as one rendered without taking into account facts or evidence on record. 11. Therefore, no interference is called for 12. Application and appeal have no merit, and are dismissed. Judge |Hedau|