1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NOS. 3314 & 3315 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R. Borkar, J. Date : February 18, 2010 1. Heard Shri R.S. Shinde, learned Advocate holding for Shri N.L.Choudhari, learned Advocate for the applicant. 2. These are the two applications by the same applicant seeking leave to file appeals in respect of two cheques issued by the same respondent. 3. It is the case of the present applicant in both the matters that the 2 respondent was in need of money and, therefore, he had taken hand loans of Rs.1,10,000/= and Rs.1,13,000/= from the applicant and towards repayment of the loans, he had issued two cheques in favour of the applicant. However, those cheques, on presentation to the bank, were not honoured. Consequently, notices were issued by the applicant calling upon the respondent to pay the amount, but still no payment was made and, therefore, two complaints bearing S.C.C. No.113 of 2006 and 1156 of 2006 were filed against respondent for having committed offence under Section 138 of the Negotiable Instruments Act, in the court of J.M.F.C. Chalisgaon. However, the respondent came to be acquitted of the said offence in both the cases by the learned Magistrate by separate judgment and order dated 3 11.8.2009 which acquittal is sought to be challenged by seeking leave in these two applications to file appeals. 4. The main ground for acquittal is that the complainant has failed to prove that the cheques were issued towards discharge of debt or other liability within the meaning of Section 138 of the Negotiable Instruments Act. It is held that the complainant failed to prove payments of Rs.1,10,000/= and Rs.1,13,000/= to respondent. 5. The reasons are given by the learned Magistrate in paragraph 11 of the judgments. It is stated by the learned Magistrate that in cross examination, the complainant disclosed that he himself was indebted; he is an agriculturist; he did not explain how 4 he had raised such big amounts of Rs. 1,10,000/= and Rs.1,13,000/= for giving hand loans to respondent-accused. It is also stated that the father and brother of the respondent were also prosecuted by the present complainant for cheques bounced and the document of mortgage deed was obtained from them and the matter was subsequently compromised. Therefore, the question arises how the complainant, who was agriculturist and was himself in debt, had raised such huge amounts for advancing hand loan. It is also observed that while giving hand loan, no writing was effected nor any witness was present. There was simply word of complainant. Considering the totality of the circumstances, the trial court disbelieved the theory of giving hand loan to the accused. On the contrary, 5 the court accepted the theory of respondent having given blank cheques. 6. After giving anxious consideration to vehement arguments advanced by Shri R.S.Shinde, learned Advocate for the applicant, in my opinion, the view taken by the learned Magistrate is a reasonable and proper view. 7. Hence, both applications rejected. Leave refused. Date:18/02/2010 (P.R.BORKAR, J.) pnd/criap930.96