1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3553/2009 Sahebrao Balnath Kadlag Applicant V E R S U S Dinkar Bhagwat Wakchaure Respondent Smt. Sadhana S. Jadhav, Advocate for the applicant Shri R. D. Bhalerao Advocate for the respondent- sole ..... CORAM : SHRIHARI P. DAVARE, J. ....... DATE OF RESERVING ORDER : 13.07.2010 DATE OF PRONOUNCING ORDER : 19.07.2010 PER COURT : 1. Heard respective learned counsel for the parties. 2. This is an application preferred by the applicant seeking leave to file appeal against the judgment and order of acquittal dated 6.6.2009 passed by learned 3 rd Judicial Magistrate First Class, Sangamner in STCC No. 233/2007 acquitting the respondent/original accused for the offence under section 138 of Negotiable Instrument Act. 3. I have perused the impugned judgment and order of acquittal 2 dated 6.6.2009 and record and proceeding with the assistance of learned counsel for the parties. 4. The case of the complainant, in short, is that the cheque dated 07.02.2007 of Rs. 3,40,000/- drawn on the Sinnar Merchants Cooperative Bank Ltd Branch Thangaon was issued by the accused to the complainant towards discharge of liability for the purchased pomegranates. On presentation for encashment, it was dishonoured and returned unpaid with endorsement ‘Funds insufficient’. Hence, complainant issued legal notice to the accused on 21.3.2007 and same was replied by him. He gave false reply but did not comply with the requisitions contained in the said notice. Hence, after observing necessary formalities, complainant filed complaint against him. 5. Accused appeared before the court. His plea was recorded and he pleaded not guilty and claimed to be tried. 6. During the trial, complainant Sahebrao examined himself and adduced evidence and produced documentary evidence as well as accused also examined himself and adduced evidence and produced documentary evidence. The defence of the accused in his statement under section 313 of Code of Criminal Procedure is that complainant Sahebrao and he were partners in business of Krushi Seva Kendra and said business was good till 2001-2002 but recovery of debts could not be done and they sustained loss 3 of Rs.1,00,000/- and there was dispute between the complainant and accused and complainant deceived accused on the pretext that new Krushi Seva Kendra was to be formed and therefore opened account in the name of accused in Sinnar Vyapari Sahakari Bank Ltd. Sinnar Branch Thangaon and obtained new cheque book and took a cheque therefrom for the purchase of fertilizers and misused the said cheque and and filed false complaint against him. 7. After scrutinizing and appreciating evidence, learned trial judge arrived at the conclusion that cheque in question was not presented to the bank, and the complainant failed to prove that cheque in question was presented to the bank and it was returned by the bank unpaid as well as complainant failed to prove that accused has committed any offence under section 138 of Negotiable Instruments Act, and consequently, did not hold the accused guilty and acquitted him. 8. Being aggrieved and dissatisfied by the said judgment and order of acquittal dated 6.6.2009, the complainant has preferred present application seeking leave to file appeal against the same. 8. It is seen that learned trial judge observed in the impugned judgment that cheque return memo as it produced at Exh.26 does not bear the official mark/seal of the bank denoting that cheque has been 4 dishonoured. Moreover, complainant has not examined any bank official to prove the bank slip/memo and therefore complainant has failed to prove presentation and dishonour of the cheque Exh.24 in accordance with the Section 146 of Negotiable Instruments Act. Accordingly, learned trial judge observed that complainant has failed to prove said very requirement in the case in hand and consequently failed to prove offence under section 138 of Negotiable Instruments Act. 9. In the circumstances, having comprehensive view of the matter, reasoning adopted by the learned trial judge while acquitting the accused appears to be logical and based on legal footing and same cannot be faulted with. Moreover, it is also apparent that after scrutinizing and appreciating evidence on record, view adopted by the learned trial judge is a possible view to be adopted and same does not appear to be perverse. Hence, no interference therein is warranted under the appellate jurisdiction. 13. In the result, present application being sans merit stands dismissed and leave to file appeal is refused. 14. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE AAA/3553.09 .....