1 criap-47.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 47 OF 2008 Dhanraj s/o Maharudrappa Molkire Appellant versus Smt. Nirmalabai w/o Sachidanand Maharaj and others. Respondents ------- Shri V.G. Sakolkar, Advocate, for the appellant. Shri H.V. Tungar, Advocate, holding for Shri C.R.Deshpande, Advocate for Resp.Nos. 1 & 2. Coram : Shrihari P. Davare, J. Date : 7th April, 2011. P. C. 1. This is an application filed by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 28th September 2007, rendered by the learned Judicial Magistrate, First Class, II Court, Latur, in S.T.C. No.3878 of 2001, thereby acquitting accused Nos. 1 and 2, of the offence punishable under Section 138 of the Negotiable Instruments Act. 2. According to the complainant, the accused were in need of financial assistance, and therefore, they approached the complainant and requested to advance loan and they assured to 2 criap-47.08 give post dated cheque in favour of the complainant towards repayment of loan amount. Accordingly, the complainant, as per resolution passed in the meeting held on 7.6.2000, gave loan of Rs.2,26,850.00 to the accused persons on 7.6.2000 itself, pursuant to which the accused persons gave post dated (23.10.2000) cheque bearing No.023151, for Rs.2,26,850/= drawn on Latur District Central Cooperative Bank Ltd., Latur, in favour of the complainant. However, since the accused did not repay the loan amount in spite of repeated reminders, the complainant presented the said cheque for encashment purpose on 13.2.2001, but same was dishonoured and returned unpaid on 15.2.2001, with endorsement "insufficient funds". 3. Hence, the complainant sent demand notice to the accused on 15.2.2001 itself, which the accused received on 22.4.2001, but did not comply with the requisitions contained in the said notice, and hence, the complainant filed complaint under Section 138 of the Negotiable Instruments Act against accused Nos.1 to 3. The accused persons appeared in the matter and claimed to be tried. 4. To substantiate the case of complainant against the accused persons, the complainant examined himself, and one Chand Saheb Mullasaheb Kanade, as well as produced disputed 3 criap-47.08 cheque at Exh. 82, bank return memo and letters at Exhibits 80 and 81, postal receipts at Exhibits 83 and 84, copy of notice at Exh.85, acknowledgment at Exh.88, replies by accused persons at Exhibits 78, 79 and 86. 5. Accordingly, considering the oral evidence adduced and documentary evidence produced by the complainant, initial presumption under Sections 118 and 139 of the Negotiable Instruments Act, is in favour of the complainant that the accused had issued the cheque in question, in favour of the complainant towards discharge of debt/liability, wholly or in part, but the said presumption is rebuttable. 6. In the said context, it is to be seen, whether the accused persons have rebutted the said presumption, and defence of the accused is that accused No.3 has expired and accused Nos. 1 and 2 were not aware in respect of the transaction which took place between the complainant and accused No.3, and since accused No.3 was the President of the Institution, he was in possession of blank cheques having signatures of accused No.1 thereon, and accused No. 1 is illiterate woman and was Secretary of the institution, for name sake, and, in fact, accused No. 3 was managing affairs of the institution. 4 criap-47.08 8. It is also contended by the accused that the complainant did not give any amount to the institution, and, in fact, he had no financial capacity to give huge loan amount to the tune of Rs. 2,26,850/- to the accused, and the complainant has misused the cheque bearing signature of accused No.1. It is also contended by accused that accused No.2 has no concern with the alleged transaction. Admittedly, accused neither examined themselves nor examined any witness in support of their defence, but put forth their defence through cross examination of the prosecution witnesses, and also through their statements recorded under Section 313 of the Code of Criminal Procedure. 9. Considering the evidence on record, and more particularly cross examination of the complainant's witness, the learned trial judge observed that the complainant's witness admitted in the cross examination that he was not knowing the accused persons prior to 7.6.2000 and the complainant himself introduced accused Nos. 1 to 3 to him, and initially he met accused No. 3 and handed over the amount to accused No.3, and the learned trial judge observed that, therefore, it appears that there was transaction between complainant and accused No. 3, but it is not clear from the evidence of complainant and his witness that whether there was approval to the transaction, by the managing committee. 5 criap-47.08 10. Moreover, learned trial court also observed that the complainant produced only photo copy of the resolution, and although it is an important piece of evidence, the complainant has not produced original resolution, on record, and the photo copy produced by the complainant has not been proved as secondary evidence, and hence, same could not be read in evidence, and consequently, trial court observed that it was incumbent upon the complainant to prove and establish the transaction between him and the accused, but the complainant has not come before the court, with clean hands, and further held that, consequently, it cannot be proved that the complainant gave loan amount to the accused, as alleged, and apparently; there is no flaw in the reasoning given by the learned trial judge, in that respect. 11. Accordingly, it appears that the accused have rebutted the said presumption on preponderance of probability, and therefore, burden shifts upon the complainant to prove and establish that the accused had issued the cheque in question in his favour towards discharge of legally enforceable debt/liability. 12. In the said context, learned trial judge observed that the amount of Rs.2,26,850.00, allegedly given by the complainant to the accused, is a huge amount and yet, the complainant has not 6 criap-47.08 given any particulars thereof, and the complainant has not come before the court with clean hands. It is also observed by the learned trial judge that it does not appear that there was transaction between the complainant and accused No.1. Moreover, complainant admitted in his cross examination that accused No.1 has been serving at Nanded since last 14-15 years, and therefore, learned trial court observed that accused Nos. 1 and 2 are not liable to repay the aforesaid amount. It is further observed that the complainant has failed to prove and establish from where, he had brought the aforesaid huge amount to pay the same to the accused and no particulars thereof have been given by the complainant, and consequently, the complainant failed to prove and establish, beyond reasonable doubt, that the accused had issued cheque in question to the complainant towards repayment of legally enforceable debt/ liability, and the said observations made and conclusion drawn by the learned trial court in that respect, cannot be faulted with, apparently. 13. In the circumstances, the view taken by the trial court, after scrutinizing and assessing the evidence before it, while acquitting the accused, is a possible view to be adopted and same does not appear to be perverse, and therefore, no interference therein is called for, in the appellate jurisdiction, and hence, present application deserves to be rejected. 7 criap-47.08 14. In the result, present application stands dismissed. Leave to file appeal is refused. Application stands disposed of, accordingly. pnd/criap-47.08 (Shrihari P. Davare, J.)