cra1693.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1693 OF 2010 Shriram Shivaji Chavan, Age-40 years, Occu:Agril. and Business, R/o-Karajkheda, Tq. & Dist-Osmanabad. ...APPLICANT. VERSUS 1) Govindlal Dwarkadas Hedda, Age-58 years, Occu: Agril. and Business, R/o-Bembali, Tq. & Dist-Osmanabad, 2) The State of Maharashtra ...RESPONDENTS. ... Shri.M.P. Tripathi Advocate for Applicant. Shri.M.B. Kolpe Advocate for Respondent No.1. Shri.B.V. Wagh, A.P.P. for Respondent No.2. ... CORAM: SHRIHARI P. DAVARE, J. DATE : 10TH JUNE, 2011. cra1693.10 2 COURT'S ORDER : 1. Heard learned counsel for the respective parties. 2. This is an Application preferred by the Applicant (original complainant) seeking leave to file appeal challenging the acquittal order dated 9th December, 2009 passed by the Judicial Magistrate (F.C.), IVth Court, Osmanabad in Summary Criminal Case No.1601 of 2005, thereby acquitting the Respondent No.1 (original accused) for the offence under Section 138 of the Negotiable Instruments Act. 3. I have perused the impugned Judgment and order dated 9th December, 2009 as well as perused the Record and Proceedings with the assistance of learned counsel for the parties. 4. Briefly stated, facts of the present case are as follows: cra1693.10 3 . It is alleged that the complainant and the accused are agriculturists and they were well acquainted with each other. Accused gave his agricultural land to the extent of 10 acres to complainant on Batai basis for cultivation. Accordingly the complainant cultivated 10 acres sugar cane crop by incurring Rs. 1,00,000/- (Rupees One Lakh) expenditure. However, after that, accused refused to give his land to the complainant on Batai basis and agreed to give expenditure spent by the complainant. Accordingly accused issued cheque bearing No.261859 dated 26th August, 2005, of Rs. 1,00,000/- (Rupees One Lakh) to the complainant. The complainant presented the said cheque for encashment purpose in September, 2005. However, the said cheque was dishonoured and was returned unpaid on 24th September 2005, with the endorsement "funds insufficient". Hence complainant issued demand notice to the accused on 6th October, 2005. However, the accused failed to cra1693.10 4 repay the amount within fifteen days of the receipt of notice. Hence the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act. 5. After recording verification of the complainant, process came to be issued against the accused under Section 138 of the Negotiable Instruments Act. Accordingly, accused appeared in the said matter and plea was recorded. The accused pleaded not guilty and claimed to be tried. 6. The complainant filed his affidavit of evidence in lieu of examination in chief at Exhibit 20 and produced the documents i.e. cheque No.261859 at Exhibit 21, letter of Osmanabad District Central Co-operative Bank, Branch Patoda dated 24th September, 2005, memo of bank at Exhibit 23, office copy of the notice issued to accused at Exhibit 24, acknowledgement receipt at Exhibit 25. Accordingly, complainant adduced oral cra1693.10 5 evidence as well as produced documentary evidence. In rebuttal, the accused examined DW-1 Amol Hanmantrao Lakal at Exhibit 36 as defence witness and also relied upon documentary evidence at Exhibit 44 and 45. Lakal is employee of District Central Co-operative Bank, Osmanabad. 7. Accordingly, after considering the oral evidence adduced by the complainant as well as aforesaid documentary evidence produced by the complainant, initial presumption is raised in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act, that the accused issued disputed cheque in question to the complainant towards discharge of liability in part or whole. However, the said presumption is rebuttable and the standard of proof required therefor is on preponderance of probability. 8. Hence, the question arises, whether the accused has rebutted the said presumption. In the cra1693.10 6 said context, it is necessary to advert to the defence raised by the accused and defence of the accused is that his cheque book was lost and complainant has misused the lost cheque by doing false signature. It is also defence of the accused that he has not received any notice of the complainant and also challenging the signature on cheque and the acknowledgement receipt. In order to corroborate his defence, the accused has examined one defence witness as aforesaid, namely, Amol Lakal at Exhibit 36. On perusal of deposition of said defence witness Amol Lakal, employee of District Central Co-operative Bank,it appeared that he has stated that accused has given intimation to the Bank, that disputed cheque in question was lost and he also produced applications below Exhibit 44 and 45, to that effect. On perusal of the said applications, it appears that accused has categorically informed to the Bank that disputed cheque in question was lost and the same not to be honoured. Hence, it is apparent that the accused cra1693.10 7 has probalised his defence on preponderance of probability and rebutted the presumption raised against him. 9. Thus, since the accused has probalised the defence and rebutted the presumption raised against him on preponderance of probability, the burden shifts upon the complainant to prove and establish that there existed legally enforceable debt against the accused and the accused issued the cheque in question to the complainant towards discharge of legally enforceable debt/ liability partly or whole, beyond reasonable doubt. 10. Hence, in the said context, it is necessary to assess the evidence adduced and produced by the complainant and it is pertinent to note that the complainant has failed to produce any document showing that the impugned cheque was related to legally enforceable debt. Moreover, although the complainant deposed that he has cra1693.10 8 cultivated sugar cane crops in the land of accused, but he failed to prove his possession over the land during the period of cultivation. If really he had cultivated sugar cane crop in the said land, he would have brought on record evidence of the labourers who were used for cultivation, but nothing is produced of that sort, on record. Hence, it is amply clear that the complainant has failed to prove and establish beyond reasonable doubt that the complainant has advanced the amount of Rs. 1,00,000/- (Rupees One Lakh) to the accused, and consequently, also failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused and further failed to establish beyond reasonable doubt that disputed cheque in question was issued by the accused to the complainant towards the discharge of legally enforceable debt/ liability, partly or whole. 11. Having comprehensive view of the matter, cra1693.10 9 it is apparent that view adopted by the learned trial Judge, while acquitting the accused, after analyzing and assessing evidence on record, is a possible view to be adopted and same does not appear to be perverse and the reasoning given therefor also cannot be faulted with. Hence no interference is called for in appellate jurisdiction, and, therefore, present Application deserves to be dismissed. 12. In the result, present Criminal Application which is sans merits, stands dismissed and leave to file Appeal is refused. 13. Record and Proceedings be sent back to the concerned Court. [SHRIHARI P. DAVARE, J.] asb/JUNE11/cra1693.10