1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4228/2009 Pravin Himmatlal Katariya Applicant ( orig. complainant ) V E R S U S Uttam Sambhaji Dusing Respondent. ( orig. accused ) Shri A. S. Sawant, Advocate for the applicant. Shri A. P. Avhad, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 13TH JULY, 2010. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant/original complainant, seeking leave to file appeal against judgment and order of acquittal dated 10.9.2009 passed by learned Judicial Magistrate First Class, Court No.2, Ahmednagar in STC No.1794/2005 acquitting the respondent/original accused for the offence punishable under section 138 of Negotiable Instruments Act. 2 3. I have perused the impugned judgment and order of acquittal dated 10.9.2009 and record and proceeding with the assistance of learned counsel for the parties. 4. In short, it is the case of the complainant that he is running grocery shop in the name and style as ‘Pravin Provision Stores’ and he had cordial relations with the accused and since accused was in need of money for repayment of hand loan taken from others, complainant advanced hand loan of Rs.42,000/- to the accused. It is also alleged that when the complainant demanded said amount from the accused, he issued a cheque dated 31.1.2005 for the amount of Rs.42,000/- drawn on Syndicate Bank, Branch M.G. Road, Ahmednagar. The complainant presented said cheque for encashment however, said cheque was dishonoured and was returned unpaid due to ‘Insufficient balance’. Hence, complainant issued legal notice to the accused on 28.2.2005. However, accused failed to comply with the requisitions contained in the said notice. Hence, complainant after observing necessary formalities filed complaint against accused under section 138 of Negotiable Instruments Act before learned Judicial Magistrate First Class, Ahmednagar. 5. Accused appeared therein and resisted it. Complainant examined himself to support his contention where as accused examined two 3 witnesses. After considering the evidence on record, learned trial judge concluded that accused was not found guilty and therefore acquitted him by way of judgment and order of dated 10.9.2009. 6. Being aggrieved and dissatisfied by judgment and order of acquittal, complainant has preferred present application, seeking leave to file appeal against the same. 7. After scrutinizing the evidence, learned trial judge has observed in the judgment that complainant has not produced any hand loan receipt or any agreement on record to show payment as well as its acceptance by the accused and terms of its repayment. It is also observed that complainant has not produced any register of his income from the grocery shop which would be helpful to ascertain his capacity to pay hand loan of Rs.42,000/- to the accused. Neither complainant has examined any witness before whom such payment was made, nor produced any income tax return to show his income. 8. To substantiate the defence of the accused, he examined himself on oath and stated that complainant has taken his signature on blank cheques and used to withdraw his salary from Syndicate Bank and after deducting the grocery bills, he used to pay remaining salary to him. He also stated that complainant has borrowed loan in his name from Mahesh Nagari Patsanstha. Moreover, accused has examined two defence witnesses namely 4 Bapurao Dhondiba Gaikwad and Mr. Sharad Nimje Bank official. It is also observed that complainant was found in possession of some cheques having signature of accused on its back side. Accordingly, it appears that accused has probabilized his defence. 9. On the aforesaid background, learned trial judge has observed in the impugned judgment that complainant has failed to prove legally enforceable debt. Thus after scrutinizing and appreciating evidence, view adopted by learned trial judge appears to be probable view and same does not appear to be perverse, as well as reasoning given by the learned trial judge for the same cannot be faulted with and hence no interference there in is called for in the appellate jurisdiction. 10. In the result, having comprehensive view of the matter, it appears that there is no substance in the application and same is devoid of any merits and therefore same stands dismissed. Consequently leave to file appeal stands refused. 11. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) aaa/4228.09 ...