1 S.A. No. 628.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.628 OF 2010 Appasaheb Karbhai Gunde .. APPELLANT VERSUS Gorakhnath S/o Madhavrao Adhav ..RESPONDENT ... Shri. A.D. Shinde, Advocate for the appellant Shri N.R. Bhavar, Advocate for respondent CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is defendant’s Second Appeal. The present respondent filed a suit for recovery of Rs. 60,000/-. The trial Court as well as the lower appellate Court decreed the suit for recovery of Rs. 60,000/- with future interest at the rate of 6% per annum, from the date of suit till realization.. The defendant has assailed the said Judgment in the present Second Appeal. 2 S.A. No. 628.10 2. Shri Shinde, the learned Counsel for the appellant contended that both the Courts have not taken into consideration the aspect that appellant paid the amount borrowed from the respondent within one year itself. He further contended that the plaintiff was a money lender and the transaction was hit by the provisions of Bombay Money Lending Act. Even the Criminal case filed by the present respondent regarding issuance of cheque has been dismissed. All these factors go to show that the plaintiff does not have any case. The Courts below perversely appreciated the evidence. 3. Per contra, Shri Bhavar, learned Counsel for the respondent submits that issuance of cheque has presumption under Section 138 of Negotiable Instrument Act, the extent of proof in a Criminal Appeal defers from the Civil Case, just because the case under Section 138 of the Negotiable Instrument Act has been dismissed, that would not ipso-facto dis-prove the case of the plaintiff. 3 S.A. No. 628.10 4. After the matter was argued for some time, it was submitted by Shri Shinde, learned Counsel for the appellant on instruction of the appellant who is present in the Court that the appellant will comply the decree passed by the trial Court and the respondent should withdraw the Criminal Appeal bearing No. 643 of 2005, so as to amicably settle the disputes. Shri Bhavar, learned Counsel for the respondent has also taken the instructions from his client and states that his client would withdraw the Criminal Appeal No. 643 of 2005 on the satisfaction of the decree. 5. The Second Appeal can only be admitted on substantial question of law. The Judgments passed by the Courts below are based on appreciation of evidence and the Courts have arrived at a plausible conclusion. However, the appellant has now shown his readiness to comply with the decree and even the respondent has shown his readiness to withdraw the appeal. The appellant is ready to pay amount by 30th April, 4 S.A. No. 628.10 2011, on payment being received the present respondent has assured that he would withdraw Criminal Appeal NO. 643 of 2005 immediately on receipt of payment. 6. In the light of the above, the Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*