1 cri.appln.4280,2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 4280 OF 2010 Shri. Amin Sagijibhai Inamdar ... Applicant Versus Shi. Dilawar Dastagir Inamdar and Anr. ... Respondents Mr. Vikas Shivarkar for the applicant. Mr. P.S. Hingorani, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 11, 2011 P.C. 1. This is an application for leave to prefer an appeal against the judgment and order dated 17th April, 2004 by which the trial court dismissed the proceedings under section 138 of Negotiable Instruments Act filed by the applicant against respondent no. 1. The dismissal was essentially on the ground that the cheque in question was not issued towards discharge of any legally enforceable liability. 2. The short case of the applicant in his complaint is that in April, 2000, he had given a hand loan of Rs. 3 lacs. in cash to respondent no. 1. The loan was to be repaid within one year. At the 2 cri.appln.4280,2010 end of the year, when the applicant started demanding the amount, respondent no. 1 paid sum of Rs. 10,000/- to him and issued a cheque dated 17th January, 2002 in the sum of Rs.2,90,000/-. The cheque when presented for payment was dishonoured and returned with remark "not arranged for". The applicant thereafter sent statutory notice and then filed a complaint. The defence of respondent no. 1 was of total denial. He denied that there was any transaction of loan between him and the applicant. He also denied that he had issued any cheque to the applicant. According to respondent no. 1, he is a businessman having sound financial condition and that he was never in need of any hand loan much less from the applicant. According to respondent no. 1, the applicant does not even have a financial capacity to lend such large sum of money. 3. The applicant had examined himself in support of his case. The evidence of the defence consisted of deposition of respondent no. 1 (DW 1), one Sambhaji (DW 2), the handwriting expert Mr. Phiroj (DW 3) and Pandurang @ Rajabhau (DW 4). Respondent no. 1 also produced the documents like blank signed cheques, records in respect of the purchase of sugar cane by respondent no. 1 and return of the cheque and opinion of the handwriting expert. 3 cri.appln.4280,2010 4. The applicant in his evidence has made no statement as regards his financial ability. He merely stated that he had given hand loan to respondent no. 1 as respondent no. 1 was in need of money. He admitted in his cross examination that he had to sell house property at village Fursungi for the purpose of meeting marriage expenses of his sister. He admitted that respondent no. 1 is owner of 7 acres of irrigated land on which sugarcane and vegetables are grown, whereas he himself is working as a farm labourer on the daily wages of Rs. 70/-. The applicant's wife also is a farm labourer and gets daily wages of Rs. 40/-. Both have been working as farm labourers for last 15 years. This evidence is sufficient to indicate that the applicant does not have the necessary financial ability to lend a large sum of Rs. 3 lacs. to another person. 5. As against the above, the evidence brought by respondent no. 1 on record shows that respondent no. 1 in fact is a well off person who had employed the applicant. It shows that he is the owner of irrigated agricultural land at Fursungi where he grows sugarcane and vegetables. He also purchases sugarcane from the farmers. At the time of purchase, he used to issue blank cheque for the purpose 4 cri.appln.4280,2010 of security. On payment of the amount, the farmers selling sugarcane to him used to return the blank cheques. DW 2 is one such farmer who produced his own record of sale of sugarcane to respondent no. 1 and also return of blank cheque. Respondent no. 1 stated that he had employed the applicant to supervise the work of purchasing sugarcane from the farmers. He used to pay salary of Rs. 600/- per week to the applicant. Since the year 2000, the respondent no.1 started employing his son-in-law and the applicant stopped working with him. This brought strain in their relationship. According to respondent no. 1 the cheque in question was one of the blank cheques that had been signed by him for giving to farmers at the time of purchasing sugarcane which cheque has been misused by the applicant. He has examined the handwriting expert DW 3 to show that the handwritten portion on the cheuqe is not in his own handwriting. 6. In view of the above evidence, the trial court held that respondent no.1 has succeeded in rebutting the presumption under section 139 of the Negotiable Instruments Act in favour of the applicant and in the absence of any evidence to establish that the cheque in question was issued towards discharge of legally 5 cri.appln.4280,2010 enforceable debt or liability, the complaint came to be dismissed. 7. Mr. Shivarkar the learned counsel for the applicant refers to the cross examination of the applicant to show that the total expenses for the marriage of the applicant's sister was only of Rs. 30,000/-. The household property of the applicant was sold for the sum of Rs. 2,60,000/-. The balance amount had been deposited by him in the bank account of his mother. This according to Mr. Shivarkar would show that the applicant was capable of giving a handloan to respondent no. 1. The trial court, however, has rightly observed that it is not the case of the applicant that he had withdrawn the amount from his mother's bank account for lending to respondent no. 1. 8. Mr. Shivarkar next refers to the cross examination of the applicant which shows that at some point of time, he had a truck bearing registration no. MH 12 9096 which truck had been sold. But there are no details of the sale on record. Also that his daughter had met with an accident and the applicant had received some amount by way of compensation. There is no evidence before the court as to the extent of compensation received. Even if it is to be accepted that the applicant had received some amount as compensation on account 6 cri.appln.4280,2010 of an accident to his daughter, he can hardly claim that amount as his money. That would be the amount belonging to his daughter. In view of the specific evidence on record that the applicant is a labourer working on daily wages of Rs. 70/- per day in agricultural farms, the trial court has rightly concluded that the applicant did not have financial capacity to lend the large amount of Rs. 3 lacs. to the respondents. 9. Perusal of the record and notes of evidence as also the judgment shows that there is no infirmity with the view taken by the lower court. The view is a possible view in the matter. Hence, application for leave is rejected. [Judge]