1 crap1587.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1587 OF 2010 Shri Swami Samarth Nagri Pat Sanstha Maryadit, Now named as Santram Nagargoje Nagri Sahakari Pat Sanstha Maryadit ...Applicant VERSUS Shri Hamid Usman Bagwan ...Respondent ..... Shri K.N.Lokhande, advocate for the applicant Shri B.N.Palve, advocate for the respondent. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 19 th April, 2011 PER COURT : 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 judgment and order, dated 15.2.2010, rendered by the learned Judicial 2 crap1587.10 Magistrate, First Class-1, Ahmednagar, in Summary Criminal Case No. 256 of 2007, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 Having the comprehensive view of the matter and considering the totality of the evidence, admittedly initial presumption is in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act, which is rebuttable, and apparently, by production of Handwriting Expert’s opinion Exh.58, the accused has probablised the said defence that the handwriting on cheque in question Exh.23 and the handwriting on documents Exhs. 34 and 36 are of the same person, and therefore, the burden was shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability, for which the disputed cheque was issued. 4 In the said context, learned Trial Judge has made observations in para 25 of the impugned judgment that, “No doubt the accused is admitting the loan transaction and his liability to repay the loan.”, and therefore, leave to file appeal deserves to be granted to the complainant by allowing the present Criminal Application. Accordingly, leave to file Criminal Appeal is granted to the 3 crap1587.10 complianant, by allowing the present Criminal Application, and present Criminal Application be treated as Criminal Appeal. 5 Admit. Shri B.N.Palve, learned counsel waives service of notice for the respondent after admission. 6 The accused to furnish bail, on the same terms and conditions on which he was on bail during the trial, but to execute fresh bond before the Trial Court, within the period of four weeks. 7 R. and P. be sent back to the concerned court. . (SHRIHARI P. DAVARE), JUDGE. dbm/crap1587.10