1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2164 OF 2009 Vivek Balaji Chidrawar, R/o. New Mondha, Opp. Vidyut Bhavan, Nanded. ....Applicant. Versus Mohan Sayanna Nageshwar, R/o. Pro. of Sainath Bamboo Merchant, Opp. Hotel Nilgangan, Chikhalwadi, Nanded. ....Respondent. Shri. Vivek Bhavthankar, Advocate for the applicant. Shri. N.S. Choudhari, Advocate for the respondent. CORAM : P.R. BORKAR, J. DATE : 22nd February, 2010 ORAL ORDER : 1. Shri. Bhavthankar, advocate for applicant and Shri. N.S. Choudhari, advocate for respondent sole are present. This is an application for leave to file appeal against the order of acquittal recorded by the 7th Judicial Magistrate, First Class, Nanded in S.C.C.No. 2907/2003, decided on 27.2.2009, whereby the accused/respondent was acquitted of the offence punishable under section 138 of the Negotiable 2 Instruments Act. 2. Briefly, the facts giving rise to the present application are that respondent was friend of applicant and out of cordial relations, he has given hand loan of Rs. 6,20,000/- to the respondent, which was to be repaid within one month. However, the amount was not paid and on demand, cheque of Rs. 6,20,000/- was issued by the respondent. When the cheque was presented, it was dishonured with endorsement of insufficient funds. Thereafter, notice dated 16.6.2003 was issued by the petitioner to the respondent, but in spite of that no amount was paid and hence, the complaint was filed, for offence punishable under section 138 of the Negotiable Instruments Act. 3. In response to summons, the respondent remained present to contest the case. According to him, the impugned cheque was not signed by him. It was stolen away and was misused by the complainant. In this case, so far as signature on cheque is concerned, the cheque was sent for the opinion of hand writing expert and the hand writing expert has given opinion, Exh. 112, stating therein that in absence of adequate common identifying characteristics, it was not possible for hand writing expert to express his definite opinion with regard to the identity of signature at Exh. 97. A sale deed was produced to show the admitted signature of respondent and the Court was called upon to compare signature on cheque with the signature on sale deed, Exh. 97. However, the Court in 3 para 17 of the judgment has come to the conclusion that on comparison that signatures, they did not appear to be exactly similar. Even the specimen signature given to the bank by the respondent was in Marathi whereas the signature on disputed cheque was in English. In fact, when expert has given opinion that it was not possible to give opinion and when the trial Court has also observed, on comparison that signatures are not exactly similar, fact remains that the signature on the cheque was not proved to the satisfaction of the Court. 4. The another reason given for acquittal is that even though huge amount of Rs. 6,20,000/- was given, the complainant, in his evidence, could not state reason for which such amount was required by the respondent, who is his friend. I agree with the observations of the trial Court that no one, even a friend, would give loan of Rs. 6,20,000/-, unless he ascertained the reasons for seeking the loan. In this case, the trial Court in para 19 has observed that without knowing the purpose for taking such a big loan, ordinarily loan would not be given by anyone. It is also observed that the complainant is running the business of general stores and maintaining current account. He also claimed to be income tax payer. But he did not produce any document, such as his account books or the copy of income tax return to show that he had paid loan of Rs. 6,20,000/- to the respondent. There is only oral word of complainant. In para 21, it is observed that in the ordinary course of events, the complainant would not take the risk of giving such big loan without any 4 security or without execution of any document. It may be noted that in this case, the accused has proved his reply given by him to the notice at Exh. 89 and therein he deny the taking of loan and issuance of cheque. Not only that he filed criminal case bearing R.C.C.No. 923/2003 against the present applicant for committing theft of the cheque and the copy of the complaint is at Exh. 83. In this case, the trial Court has held that it was not satisfied that the cheque was given towards discharge of legally enforceable liability withing the meaning of section 138 of the Negotiable Instruments Act. 5. Considering all above facts, in my opinion, the view taken by the trial Court is reasonable and probable view. This is not a case where leave to file appeal can be granted. Hence, application is rejected. [ P.R. BORKAR, J. ] ssc/ca2164.09