(1) Cri. Application No. 3138 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3138 of 2011 Devgiri Nagri Sahakari Pat Sanstha Ltd., Jalna, Through its authorized signatory, Nandkishor s/o. Vitthalrao Deshmukh, Age : Major, Occupation : Service, having its office at Double Gin, Jalna, Taluka and District : Jalna. .. Applicant. versus 1. The State of Maharashtra. 2. Syed Ajgar Husen s/o. Syed Gulam Gaus, Age : 57 years, Occupation : Business, R/o. National Colony, behind Hotel Kandil, Aurangabad Road, Jalna, Taluka and District : Jalna. .. Respondents. ....................... Mr. S.B. Joshi, Advocate, for the applicant. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.1. (2) Cri. Application No. 3138 of 2011 Mr. A.T. Patel, Advocate, for respondent no.2. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 28TH NOVEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order of acquittal, dated 24th February 2011, rendered by the learned Judicial Magistrate (F.C.), Court No.5, Jalna, in S.T.C. No. 463/2009, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. I have perused the impugned judgment with the assistance of the learned Counsel for the parties. 4. Parties are hereinafter referred to as per their original status i.e. complainant and accused. (3) Cri. Application No. 3138 of 2011 5. The factual matrix of the case is that the complainant is a registered Cooperative Credit Society, and it is alleged that at the request of the accused, the complainant advanced loan of Rs. 30,000/- to him on 14-6-2003. Thereafter, on 3-2-2009, an amount of Rs. 10,741/- was due from the accused to the complainant / Society. It is also alleged that the accused issue a cheque bearing No. 032007, dated 3-2-2009, for Rs. 10,741/- to the complainant, towards discharge of the said debt. The complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid with endorsement "Account Closed". Thereafter, the complainant / Society issued demand notice to the accused on 10-2-2009 by R.P.A.D., as well as, U.C.P. The said notice sent by U.C.P. was duly served upon the accused. However, the accused neither replied to the said notice nor deposited the cheque amount. Hence, the complainant / Society filed the complaint against the accused. The plea of the accused was recorded on 16-8-2010, but the accused pleaded not guilty and claimed to be tried. 6. The complainant / Society examined Babasaheb s/o. Bhujangrao Nagave, as its witness and advanced oral evidence, as well as, produced documentary evidence, such as, cheque, in (4) Cri. Application No. 3138 of 2011 question, Exhibit 23; cheque returned memo, Exhibit 24; Receipt, Exhibit 25; Demand notice, Exhibit 26; RPAD Receipt, Exhibit 27; UPC Receipt, Exhibit 28; Envelope, Exhibit 29; Resolution, Exhibit 30; loan demand application, Exhibit 31; Karj Rokha, Exhibit 32; Promissory note, Exhibit 33; Voucher, Exhibit 34; loan extract, Exhibit 35. 7. On the aforesaid background, the accused examined himself as D.W.1, and also examined defence witness, namely, Giridhar Gopalrao Waghmare, Manager, Bank of India, Branch Jalna, as D.W.2, and also relied upon the receipts filed along with list of documents Exhibit 42. The accused raised multi-fold defences, such as, time barred debt, the accused repaid the entire debt / liability advanced by the complainant, and nothing is due by the accused to the complainant, and the demand notice was not served upon him properly. 8. Considering the oral and documentary evidence adduced and produced by the complainant, initial presumption is raised in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act, that the disputed cheque in question was issued by the accused to the complainant towards discharge of liability / debt in part or in whole. However, the said presumption is rebuttable by the accused and the standard of (5) Cri. Application No. 3138 of 2011 proof required therefor is on preponderance of probability. 9. In the said context, the accused has produced receipts along with the list of documents Exhibit 42, and the learned trial court has rightly observed that on perusal of the said receipts, it appears that the accused has repaid Rs. 32,000/- to the complainant / Society till 6-1-2006. Hence, the learned trial court has rightly observed in the impugned judgment, that the defence raised by the accused regarding repayment of whole debt advanced from the complainant / Society appears to be probable. 10. Hence, it is apparent that the accused has rebutted the said presumption under Section 139 of the Negotiable Instruments Act, and therefore, burden shifted upon the complainant to prove and establish beyond reasonable doubt, that there existed legally enforceable debt / liability and the said cheque in question was issued towards legally enforceable debt / liability, partly or in whole. However, the complainant has not produced any cogent evidence to prove and establish beyond reasonable doubt, that there existed legally enforceable debt / liability at the time of issuance of cheque, in question, by the accused to the complainant, and the said cheque, in question, was issued by the accused to the complainant towards discharge of legally enforceable debt / liability, partly or in whole. Hence, the (6) Cri. Application No. 3138 of 2011 learned trial court has rightly answered the said point and acquitted the accused by the impugned judgment and order dated 24-2-2011, and no interference therein is warranted in appellate jurisdiction. 11. In the circumstances, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and the same does not appear to be perverse, and reasoning adopted therefor also cannot be faulted with, and hence, present Application deserves to be rejected. 12. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka3138