1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4449 OF 2009 Manik s/o Rambhau Dindore - APPLICANT VERSUS 1) Sahebrao Sirang Ahire &Anr. - RESPONDENTS ***** Mr.NV Gavare,Advocate for Applicant; Mrs.BR Khekale, APP for Respondent No.2-State. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 8th July, 2010. PER COURT : 1) Heard Mr. Gavare, learned Counsel for the applicant; Mrs. Khekale, learned APP for Respondent No.2-State. Mrs. MA Kulkarni, Adv. for respondent No.1-absent. 2) This is an application preferred by the applicant (original complainant) seeking leave to file an appeal against Judgment and Order of acquittal dated 15.10.2009 passed by learned JMFC, Bhoom in SCC No.745/2004, acquitting the respondent No.1 (original accused) for the 2 offence punishable under Section 138 of the Negotiable Instruments Act. 3) I have perused the impugned judgment dated 15.10.2009 with the assistance of learned Counsel for the applicant. Respondent No.1 (original accused) faced the trial under Summary Criminal Case No.745/2004 for the offence under Section 138 of the N.I.Act. The complainant and accused examined themselves before the learned trial Judge. 4) It is the case of the complainant that the accused is his friend and the complainant has given friendly loan of Rs.20,000/- to the accused in July 2004 and thereupon the accused gave a cheque of Rs.20,000/- dated 8.10.2004 of Osmanabad District Central Cooperative Bank Ltd., Branch at Iit to the complainant. Accordingly, the complainant presented the said cheque for encashment, but the same was returned unpaid with the endorsement “insufficient funds”. Hence, the complainant issued notice to the accused on 19.10.2004, which was s served upon him on 21.10.2004. After observing the necessary formalities, the complainant filed the aforesaid complaint before learned JMFC, Bhoom under Section 138 of N.I. Act. The accused appeared before the Court. The complainant himself 3 examined, and the accused examined in as much as five witnesses. Both the complainant and accused adduced their respective evidences. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The defence of the accused was of total denial and he further stated that the complainant received the cheque given to him by way of security and no such transaction ever taken place between them. Ultimately, after scrutinizing and appreciating the evidence, the learned Trial Judge arrived to the conclusion that the alleged cheque was not given for lawful consideration, and accordingly acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant (original complainant) has preferred the present application seeking leave to file appeal against the said judgment and order of acquittal. 5) After scrutinizing the evidence, the learned Trial Judge has observed in the impugned judgment that the complainant should have brought some more cogent evidence in support of his contentions, but he only relied upon the rebuttable presumptions. Admittedly, there was a previous transaction and payment. The complainant submitted that there were different transactions. 4 However, he has not adduced any evidence to show that there were in fact two different transactions. The sale deed and the payment by the demand draft and the evidence on record does show the probability that the cheque could have been given for the security of the previous loan transaction and that cannot be readily ignored. On the other part, the accused took efforts to show the said fact by examining witnesses DW-2 and DW-3 whose evidences are not wiped out by the complainant. 6) It is also observed by the learned Trial Judge that the complainant failed to examine key witness, viz. Sidram Shelar. Even the complainant was not able to state the names of the persons in front of whom he had paid Rs. 20,000/- to the accused. He has not produced his account extracts on record to show the different transactions. Accordingly, the learned Trial Judge arrived at the conclusion and held that the complainant failed to prove that the accused issued Cheque No.425752 dated 8.10.2004 amounting to Rs.20,000 for lawful consideration, and consequently dismissed the said complaint acquitting the accused. 7) After analyzing and appreciating the evidence, the view adopted by the learned Trial 5 Judge is a possible view to be adopted and no perversity is found therein. Moreover, the reasoning adopted by the learned Judge cannot be faulted with in view of the discussion made by him in the impugned judgment, and hence, no interference therein is called for in the appellate jurisdiction. 8) In the result, the present application being sans merit stands dismissed and leave to file appeal stands refused. (SHRIHARI P.DAVARE) JUDGE bdv/cran4449.09