(1) Cri. Application No. 3693 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3693 of 2009 Nareshkumar s/o. Javrilal Jain, Age : 42 years, Occupation : Business, R/o. Nardana, Taluka : Shindkheda, District : Dhule. .. Applicant. versus Shri Shripal Kishor Bhandari, Age : 35 years, Occupation : Business, R/o. Chinchwad. .. Respondent. ....................... Mr. A.B. Girase, Advocate, for the applicant. Mr. A.G. Talhar, Advocate, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 12TH DECEMBER 2011 (2) Cri. Application No. 3693 of 2009 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 27th August 2009, rendered by the learned 6th Judicial Magistrate (F.C.), Dhule, in S.T.C.C. No. 2834/2005, 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 dated 27th August 2009, and record and proceedings 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. 5. The factual matrix of the matter is as follows : (a) It is alleged that the complainant is resident of Nardana (Taluka : Shindkheda, District : Dhule) and his nephew, namely, Priteshkumar Dilipkumar Jain, desired to get admission in a Dental College and accused assured him for the same and (3) Cri. Application No. 3693 of 2009 accepted amount of Rs. 4,50,000/- from the complainant towards the admission expenditure, fee, etc. However, the accused could not arrange for the said admission. Hence, the complainant demanded the said amount back from the accused repeatedly. Hence, the accused issued cheque of Rs. 4,50,000/- bearing No. 490785, to the complainant on 15-11-2004, drawn on Indian Overseas Bank, Pimpri-Chinchwad Branch, Pune. The complainant presented the said cheque for encashment purpose through Hasti Cooperative Bank Ltd., Branch Songir (Taluka & District : Dhule) on 24-4-2005. However, the said cheque was dishonoured and returned unpaid on 5-5-2005 along with cheque return memo with the endorsement 'funds insufficient'. Hence, the complainant issued notice of demand to the accused on 17-5-2005. The said notice was served upon the accused. However, inspite of service of the said notice, accused did not make payment of the said cheque amount to the complainant. Hence, the complainant filed complaint before the learned trial court under Section 138 of the Negotiable Instruments Act. After verification of the complaint, process came to be issued against the accused and the accused appeared in the said matter. His plea was recorded and he pleaded not guilty and claimed to be tried. The complainant filed his affidavit in evidence, in lieu of his examination in chief to substantiate his case, whereas the accused neither examined himself nor examined any defence witness but (4) Cri. Application No. 3693 of 2009 put forth his defence through cross examination of the complainant, and his statement recorded under Section 313 of the Code of Criminal Procedure, 1973. (b) While adducing oral evidence, the complainant produced the disputed cheque in question, at Exhibit 51; cheque return memo bearing endorsement 'funds insufficient', at Exhibit 53; copy of the notice dated 17-5-2005, issued by the complainant to the accused, at Exhibit 55; registered receipt thereof, at Exhibit 56; registered postal acknowledgment thereof, at Exhibit 57; cheque return memo of Indian Overseas Bank, Primpri- Chinchwad Branch, at Exhibit 53; another cheque return memo of Hasti Cooperative Bank Ltd., at Exhibit 54; Brochure issued by the Directorate of Medical Education and Research, Mumbai, at Exhibit 58; Fees declared by Shikshan Shulka Samiti (BDS), at Exhibit 59; and Fees declared by Shishan Shulka Samiti (MBBS), at Exhibit 60. (c) On the face of the said position, the defence of the accused, as reflected in the cross examination of the complainant and his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, is that he had obtained the cheque from the complainant to show it to the Principal of the college at the time of admission, and he has not received any money from the (5) Cri. Application No. 3693 of 2009 complainant and the complainant has filed false case against the accused since there was matrimonial dispute between him and his wife and his wife is related to the complainant. 6. After assessing the evidence on record and considering the rival submissions advanced by the learned Counsel for the parties, learned trial court acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant has preferred the present Application seeking leave to file appeal. 7. It appears from the said impugned judgment and order that the learned trial court observed therein that the complainant in his evidence affidavit stated that the accused assured that he would give admission to his nephew to any dental college and received amount of Rs. 4,50,000/- from him. He also admitted in his cross examination that the accused is not a director or related with any college or institution, and he is only a businessman, doing business of pots. However, learned Counsel for the complainant argued before the trial court, that the complainant put the amount in the custody of the accused for the convenience and for the payment of fees when when admission is fixed in the round of admission because accused is near relative of the (6) Cri. Application No. 3693 of 2009 complainant residing at Pune. Learned trial court has further observed that these are controversial statements. Moreover, the complainant produced account extract, but the account book, from which he took the extract, has not been produced before the court or confronted it. Learned trial court has further observed that the complainant has produced copy of Income Tax return but it is not attached with the balance sheet. It is further observed that the accused paid some amount to the complainant for compromise in the present matter, but it could not reveal that the accused accepted the liability. It is further observed that it is not disclosed, under which circumstances accused tried to compromise, and it is a circumstantial thing only for corroboration when other evidence is relevant. Moreover, it is observed that the complainant has not examined any other witness to clear the ambiguities. Hence, learned trial court further observed that the things mentioned above create a doubt about the transaction made between the parties, and gave benefit of doubt to the accused. 8. Besides, it was argued before the learned trial court that basically there is no any legal base to the present complaint since it is not based upon valid contract and accused is shopkeeper doing business of pots and it is remotely possible that the accused gave assurance of admission in dental college to the (7) Cri. Application No. 3693 of 2009 complainant, and the complainant paid amount of Rs. 4,50,000/- in cash to the accused. In the said context, learned trial court has observed that under Section 138 of the Negotiable Instruments Act, cheque must have been drawn for legally enforceable debt / liability, partly or in whole, and in the present case, no such liability remained on the shoulder of the accused, and consequently, acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. 9. Having comprehensive view of the matter, 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, apparently, cannot be faulted with, and hence, no interference is called for therein, in the appellate jurisdiction. 10. In the result, present Criminal Application bears no substance and the same is devoid of any merits, and therefore, same stands dismissed. Leave to file appeal is refused. 11. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE