1 Cri-A-4858-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 4858 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Subhash Nagri Sahakari Pathsanstha Mydt. Sangli. .. Appellant Vs. Shri Pravin Vilas Shinde .. Respondent Mr. Manoj Patil,Advocate, for the appellant. Mrs.Mangesh Chavan, Advocate for the respondent No.1.. Mr. V.B.Konde Deshmukh, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 16th March, 2011. P.C. 1. This application is filed by the original complainant for leave to prefer appeal against the order of acquittal in a case under Section 138 of Negotiable Instruments Act. 2. Heard the learned Counsel for the parties. 3. The complainant is a Co-operative Bank. According to the complainant - one Vilas Shamrao Shinde, who is father of the accused/respondent and the accused had jointly applied for loan. The loan was actually advanced to 2 Cri-A-4858-09.sxw Vilas Shinde and the accused was a guarantor. For repayment of certain loan amount, on 4.4.2007, the accused issued a cheque No.562712 for the amount of Rs.78,063/- against his account maintained with The Sangli District Central Co- operative Bank Ltd., Branch Gaon Bhag. The said cheque was presented and on 7.4.2007, intimation was received that the cheque was dishonoured for want of sufficient funds. Thereafter statutory notice was issued to the accused demanding the payment of the cheque amount. After receipt of the notice, the accused replied contending that neither he was guarantor of the loan allegedly taken by his father nor he had issued the said cheque on 4.4.2007 for repayment of the loan allegedly taken by his father. In the reply notice, he contended that in the year 2002, he had taken loan from the complainant Bank and at that time, he had handed over three blank cheques to the Bank as security of that loan. That loan was completely repaid by 2005 and no amount was due from him under that loan account. However, the blank cheques remained with the Bank and one of those blank cheques was misused by the complainant and had made false claim. After that the complainant Bank filed the case under Sec. 138. 4. On behalf of the complainant, its employee Appasaheb Sultan Sandi was examined as a witness. He filed his affidavit in lieu of examination-in-chief stating the case of the complainant. In the cross-examination, he admitted that no document was produced by complainant Bank to show that the accused was a 3 Cri-A-4858-09.sxw guarantor for the loan allegedly taken by his father. He also admitted the receipt of the reply notice wherein the accused had specifically alleged that he had handed over three blank cheques, bearing Nos. 562712 to 562714, as security of the loan taken by him previously. He admitted that the contents of the cheque in dispute were written with the ink different from the ink used for signature of the accused on the said cheque. The contents of the cheque and signature were also in different handwriting. It indicated that the contents of the cheque were not written by the accused himself and also that the contents of the cheque were written at some time different from the time when the signature was taken. The accused also maintained same defence in his statement under Sec.313 Cr.P.C. Not only this, he led defence evidence and filed his affidavit in lieu of examination- in-chief in defence stating his case but he was not cross-examined on behalf of the complainant. Thus, the testimony of the accused had gone unchallenged. In view of the unchallenged testimony of the accused that the complainant had misused one of the three blank cheques given by him as security of his earlier loan and that he was not a guarantor for the loan allegedly taken by his father there was no reason to discard his evidence. The learned trial Court considered the above evidence led by both the parties and came to conclusion that the complainant had failed to prove that the said cheque was issued by the accused in discharge of debt or liability on 4.4.2007. Taking into consideration the facts and 4 Cri-A-4858-09.sxw circumstances, it is difficult to take a different view. No purpose will be served by granting leave to prefer appeal against the said order of acquittal. 5. Therefore, the Application stands rejected. (J.H.BHATIA,J.)