1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APPA) NO. 11 OF 2011 (Prakash Onkar Gawande Vs. Vilas Wamanrao Walokar) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri A. B. Mirza Adv for applicant. Shri D. B. Patel APP for respondent/State. Shri Pande Adv h/f Shri Mardikar Adv for respondent no.1. CORAM: M. N. GILANI J. DATED: 28th JUNE, 2011. . This is an application under Section 378(4) of Criminal Procedure Code for leave to file an appeal against the order of acquittal dated 28.10.2010 passed by Judicial Magistrate First Class Telhara, district Akola. The appellant is original complainant in Summary Criminal Case No. 861 of 2006. The appellant and the respondent no.1 are teachers by profession. Cheque to the tune of Rs. 2,25,000/- drawn by the respondent in favour of appellant was dishonored and, therefore, he filed complaint under Section 138 of the Negotiable Instruments Act. 2 Learned Magistrate held that respondent had drawn cheque for an amount of Rs. 2,25,000/- and same was dishonored. However, the learned Magistrate after perusing the evidence recorded a finding that the appellant failed to show that cheque issued in his favour was towards discharge of legally enforceable liability. Heard Shri Mirza learned counsel for the appellant and Shri Pandey learned counsel for respondent no.1 and Shri Bhagde learned APP for the State-respondent no.2. Perusal of the judgment impugned in this appeal reveals that learned Magistrate has tried to probe into the financial capability of the appellant and also tried to probe the source of funds. The transaction between the parties was regarding purchase of immovable property. On account of this the respondent had issued cheque. Learned Magistrate held that the receipts produced on record have not been proved by the appellant by examining the scribe and the witnesses. Other observation of the learned Magistrate was regarding non disclosing of the transaction in the tax return. The issue before the Court in the prosecution under 3 Section 138 of the Negotiable Instruments Act is drawing of the cheque by the accused. This point is answered in the affirmative. Non proving the contemporary documents etc. is insignificant. Probing source of funds or the financial capability may not be germane to the issue involved in such case. In that light of the matter arguable points are involved. Leave as prayed for is granted. APPEAL: Admit . Learned counsel accepts the notice on behalf of the respondent no. 1 and learned APP accepts the notice on behalf of respondent no.2, therefore, action under Section 390 Criminal Procedure Code is dispensed with. JUDGE svk 4