1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3312 OF 2009 Dipak s/o Manohar Nawase - APPLICANT VERSUS 1) Rajendra s/o Gangadhar Gursal and Anr. - RESPONDENTS ***** Mr.NR Bhavar,Advocate for Applicant; Mr.SB Kadu, Advocate for Respondent No.1 Mrs.BR Khekale, APP for Respondent No.2-State. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 22nd July, 2010. PER COURT: 1) Heard Mr.Bhavar, learned Counsel for applicant; Mr.SB Kadu, learned Counsel for Respondent No.1 and Mrs.Khekale, learned APP for Respondent No.2-State. 2) This is an application preferred by the applicant (original accused), seeking leave to file appeal against the judgment and order of acquittal dated 21st July, 2009 passed by learned Judicial Magistrate, First Class, Kopargaon in 2 S.T.C.No.331/2007, acquitting the respondent no. 1(original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3) In short, the case of the complainant is that, he was carrying on business of cloth shop under the name and style as “Rangoli Dresses” in Kapad Bazar, Kopargaon and he had friendly relations with the respondent no.1/accused since the accused used to come to his shop. It is also stated that the accused was in need of money for the development and cultivation of his agricultural land and purchase of seeds etc and, therefore, on the request of the accused, the complainant gave hand-loan to the accused from time to time to the tune of Rs.1,70,000/-. However, on demand of the complainant, the accused did not repay the said hand loan. Ultimately, the accused issued a cheque of Rs. 1,70,000/- dated 10.5.2007 drawn on Peoples Cooperative Bank Ltd. Kopargaon to the complainant. The complainant presented the said cheque for encashment on 14.5.2007. However, the said cheque was dishonoured and returned unpaid with the endorsement “refer to drawer”. Thereafter the complainant issued statutory notice to the accused on 19.5.2007 and demanded the said amount. The said notice was received by 3 the accused, but the accused failed to comply with the requisite contents therein. The complainant thereafter filed a complaint against the accused under Section 138 of the N.I. Act before the learned JMFC, Kopargaon,District Ahmednagar. 4) Accordingly, after examining the complainant, process came to be issued against the accused under Section 138 of the N.I. Act. Pursuant to the process, the accused appeared and pleaded not guilty and claimed to be tried. 5) The complainant adduced his evidence and also examined two other witnesses in his support, whereas the accused has not examined any witness but put forth his defence through cross- examination of the complainant and also by a statement recorded under Section 313 of Cr.P.C. and the defence of the accused was that of total denial. Accordingly, after appreciating the evidence on record, the learned trial Judge arrived at the conclusion that the accused has probablised his defence and there was no legally enforceable debt for issuance of cheque, and consequently held that the accused was not found guilty for the offence alleged, and further consequently, acquitted the accused for the offence under Section 138 of the Negotiable 4 Instruments Act by way of Judgment and order dated 21st July, 2009. Being aggrieved and dissatisfied with the said judgment and order of acquittal of the accused, the complainant has preferred the present application, seeking leave to file an appeal against the same. 6) As regards the aspect of issuance of the cheque towards enforceable debt or liability, the leaned Judge observed in the impugned judgment that the complainant has not produced on record any statement of account maintained by him as to the amount advanced to the accused as well as the complainant has nowhere mentioned any date of advance of amount in the complaint, nor he has stated date of advance in his affidavit of evidence, nor he has mentioned any year or month, in which he has advanced the amount to the accused. Moreover, he has also not stated as to how many times he has advanced the amount, totaling Rs.1,70,000/- to the accused. The learned Judge further observed that the said inaction on the part of the complainant creates doubt as to the amount advanced by him. The learned Judge further observed that in the absence of proof of advance of amount and existence of liability on the date of issuance of cheque, it cannot be said that there was existing liability and consequently came to the conclusion 5 that the complainant failed to prove the existing debt or liability on the date of issuance of the cheque and ultimately concluded that the accused was not found guilty for the alleged offence under Section 138 of N.I.Act and acquitted him. 7) After scrutinizing and appreciating the evidence on record, the view adopted by the learned trial Judge is possible view to be adopted and, therefore, no interference therein warranted in the appellate jurisdiction. Moreover, the reasoning given by the learned Trial Judge for arriving at the afore stated conclusion, cannot be faulted with and the view taken by the learned trial Judge also does not appear to be perverse and, therefore, present application bears no substance and same is devoid of any merit and hence same deserves to be rejected. 8) In the result, present application being sans merits stands dismissed. Leave to file appeal stands refused. R. and P. be sent back to the concerned Court. (SHRIHARI P.DAVARE) JUDGE bdv/cran3312.09