IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 242 OF 2009 IN STAMP NUMBER MAIN NO. 1858 OF 2009 SHRI. CHANDRAKANT SHANKER NAIK ... Applicant Versus SHRI. RAJESH RAMCHANDRA KHANDEPARKAR ... Respondent Shri N. K. Sawaikar, Advocate for the Applicant. Coram:- N. A. BRITTO, J. Date:- 26th August, 2009 P.C.:- The complainant seeks leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 16-4-2009 of the learned J.M.F.C., Sanguem. Heard Shri N. K. Sawaikar, the learned Counsel on behalf of the Applicant. The subject matter of the complaint are two cheques given by the accused to the complainant dated 28-7-2005 for Rs.50,000/-, and dated 3-8-2005 for Rs.40,000/-, which when presented by the complainant for payment were returned dishonoured on account of insufficient funds in the account of the accused and a legal notice having been sent to the accused by the complainant on 23-12-2005, the same was received by the accused on 30-12-2005 but the same was not replied nor complied with by the accused. In support of the complaint, the complainant examined himself. The accused did not examine any witness in support of his defence. A Court witness was examined by name Suresh Naik who in his evidence stated that the truck bearing No.GA-01/W-5976 which originally belonged to Prasanna V. Ghotage was purchased by him in the year 2004, and since then he is in possession of the same, and his name was entered in the registration certificate in respect of the said truck. The case of the complainant was that the said truck belonged to the said Prasanna V. Ghotage, and it was purchased by the complainant from the said Prasanna V. Ghotage in December, 2000, for a sum of Rs.8,12,312/-, out of which a sum of Rs.2,12,312/- was paid by the complainant to the said Ghotage in cash and the balance amount of Rs.6,00,000/- was to be paid by the complainant by running the said truck for the said Prasanna V. Ghotage and the accused paid a sum of Rs.3,20,000/- to the said Prasanna V. Ghotage, and a sum of Rs.2,80,000/- was due and payable by the accused as on May, 2005, to the complainant. It was further the case of the complainant that as the complainant was having difficulty in running the said truck, he agreed to sell the said truck to the accused for a total amount of Rs.4,70,000/-, out of which the accused paid Rs.1,00,000/-, and he handed over the possession of the truck to the accused in the month of June, 2005, and towards part payment of balance amount the accused issued the subject cheques which, as already stated were dishonoured when presented for payment. The complainant examined himself in support of his case but did not examine the said Prasanna V. Ghotage to whom the truck originally belonged to, and from whom the said complainant had purchased the said truck when the same was allegedly sold by the complainant to the accused. Although, the accused did not examine himself the entire case of the complainant has been almost destroyed with the examination of the said Suresh Naik who was examined as a Court witness, and who has clearly and categorically stated that he had purchased the said truck in the year 2004 from the said Prasanna V. Ghotage, and since then it is he who is having possession of the said truck. If the said Suresh Naik had obtained possession of the said truck as stated by him from its registered owner, the said Prasanna V. Ghotage regarding which there is no dispute, the entire case of the complainant that the subject cheques were given by the accused towards part payment of purchase of the said truck in favour of the complainant becomes doubtful, and being so, it was necessary for the complainant to have examined the said Prasanna V. Ghotage on whose name the truck stood prior to its sale to the said Suresh Naik. Except for his bare statements, the complainant produced no evidence of payment by him of Rs.2,12,312/- or Rs.3,20,000/- in favour of the said Ghotage. Similarly, the complainant produced no evidence of Rs.1,00,000/- having been paid by the accused to the complainant. Nobody would have parted with the possession of a truck worth Rs.4,70,000/- by mere payment of Rs.1,00,000/- in cash and Rs.90,000/- in cheque and without execution of any document. If the truck was sold by Shri Ghotage to whom it admittedly belong to Suresh Naik and he was put in possession of the same in the year 2004, there could not have been any agreement in respect of the said truck between the complainant and the accused in May/June, 2005. Complainant had failed to prove the existence of any agreement between the complainant and the accused. The evidence of Suresh Naik makes the case of complainant highly improbable and doubtful. With his evidence the accused was able to discharge the burden which was on him that the said cheques were issued in discharge of a debt or liability. Looked from this angle, in my view, the acquittal of the accused under Section 138 of the Act could not be faulted. This is not a fit case to grant leave to appeal, and consequently the application is hereby dismissed. N. A. BRITTO, J. RD.