1 crap1011.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1011 OF 2011 Shaikh Abdul Sattar s/o Shaikh Maheboob ...Applicant (Orig. Complainant) VERSUS Shri Mirza Kausar Baig s/o Aziz Baig ...Respondent (No.1 Orig. accused) ..... Shri B.V.Dhage, advocate for applicant (original complainant) Shri S.V.Natu, advocate for respondent no.1 Smt. Y.M.Kshirsagar, A.P.P. for respondent no.2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 16 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order of acquittal dated 1.2.2011, rendered by the learned 2 crap1011.11 Judicial Magistrate, First Class, Court No. 13, Aurangabad in Summari Criminal Case No. 3107 of 2009, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 The parties hereinafter are referred as per their original status, as ‘the complainant’ and ‘the accused’. 4 The factual matrix of the matter is as follows :- The complainant was carrying on the business of private construction contractor at the relevant time. The accused obtained hand loan of Rs. 2,55,000/- from the complainant and the said amount was given by the complainant to the accused in two phases i.e. Rs.1,35,000/- on 9.9.2007 and Rs. 1,20,000/- on 16.9.2007. Accordingly, the accused issued cheque no. 84776, dated 12.3.2008 for Rs. 1,35,000/- drawn on Saraswat Co-operative Bank Limited, Kranti Chowk, Aurangabad to the complainant towards the repayment of the said hand loan amount. Hence, the complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid on 14.3.2008 with endorsement “funds insufficient” along with the bank return memo. Thereafter, since the accused requested to present the said cheque 3 crap1011.11 for encashment purpose, the complainant presented the said cheque for encashment purpose again, but again it was dishonoured and returned unpaid on 30.5.2008. Hence, the complainant issued demand notice, dated 9.6.2008 to the accused by R.P.A.D. However, the accused did not accept the said notice and same was returned back to the complainant on 27.6.2008. Thereafter also the accused did not repay the said cheque amount to the complainant within the stipulated period. Hence, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act. Accordingly, the accused appeared therein and his plea was recorded and the accused pleaded not guilty and claimed to be tried. 5 To substantiate the case of the complainant, he filed his affidavit in view of examination-in-chief Exh. 16 and also produced the disputed cheque in question at Exh. 22, bank return memos at Exhs. 23 and 24, envelope of unserved notice at Exh. 25, postal receipt at Exh.26 and accordingly adduced the oral evidence and produced the documentary evidence. 6 Considering the said oral and documentary evidence adduced/produced by the complainant on record, initial presumption has been raised in favour of the complainant under Sections 118(a) and 139 of the Negotiable Instruments Act that the disputed cheque 4 crap1011.11 in question was issued by the accused towards the discharge of liability. However, the said presumption is rebuttable and the standard of proof required therefor is on preponderance of probability. 7 Hence, the question arises whether the accused rebutted the said presumption raised against him on preponderance of probability. In the said context, the accused examined himself at Exh. 34 and also produced the bond/agreement at Exh. 35, as well as the accused examined defence witness, namely, Rais Shah at Exh. 39 and Venkatesh Daware at Exh. 45. Accordingly, the accused examined as many as three witnesses including himself and produced the bond at Exh. 35. The defence of the accused, which was putforth through the cross-examination of the complainant and also through the afore said defence witnesses and his statement recorded under Section 313 of the Code of Criminal Procedure is that while obtaining the hand loan, the accused gave five blank cheques to the complainant towards the security and although the accused has repaid the amount of cheque in question to the complainant on 5.5.2008 and although the complainant executed a bond to that effect before the Notary in presence of two witnesses, which is produced at Exh. 35 and although the accused does not owe anything to the complainant, the complainant misused the said 5 crap1011.11 blank cheques and filed the false complaint against the accused. 8 To substantiate the said defence of the accused, he examined himself, as well as examined the witness of the said bond, namely Rais Shah and also examined Venkatesh Daware, who signed for the purpose of identification on the said bond. The said bond has been executed at Exh.35 and contents thereof reveal that the accused has repaid the amount of Rs. 1,35,000/- to the complainant and the afore said witnesses identified the signature of the complainant thereon and the said bond was prepared before Notary Public. It is also the contention of the accused that he demanded the blank cheques from the complainant, but the complainant stated that the said cheques were at his home and he would return the same later on. Moreover, it is also apparent that Venkatesh Daware is an advocate and the complainant and the accused signed on the said bond in his presence and he identified the signatures of the complainant and the accused thereon. It is also stated that the complainant signed on the said bond after the receipt of the amount stated therein. Hence, considering the oral and documentary evidence adduced/produced by the accused, there cannot be any dispute that the accused has rebutted the presumption raised against him on preponderance of probability. 9 Hence, in view of the said position and since the accused 6 crap1011.11 has rebutted the presumption on preponderance of probability as afore said, the burden shifts upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt and the disputed cheque in question was issued by the accused to the complainant towards repayment of the legally enforceable debt/liability partly or in whole. 9 In the said context, the learned Trial Judge, after scrutinizing and assessing the evidence on record, observed that except the disputed cheque in question, the complainant has not adduced/produced any cogent and concrete evidence to prove and establish that there existed any legally enforceable debt against the accused and the disputed cheque in question was issued by the accused to the complainant towards the legally enforceable debt/liability. Even the complainant has not produced any note/receipt or hand writing to prove and establish that he handed over any loan of Rs.2,55,000/- to the accused as alleged by him, nor the complainant examined any witness in that respect. Hence, it is apparently clear that although it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt/liability against the accused and the disputed cheque in question was issued by the accused to the complainant towards the repayment of the said legally 7 crap1011.11 enforceable debt/liability partly or in whole, the complainant failed to discharge the said burden beyond reasonable doubt. Hence, the learned Trial Judge rightly came to the conclusion in respect of point no.1 and no interference therein is called for. In the circumstances, after analysing and appreciating the evidence on record, the view adopted by the learned Trial Judge while acquitting the accused is a possible view and same does not appear to be perverse and the reasoning given therefor also cannot be faulted with, and hence, present application deserves to be rejected. 10 In the result, present application stands dismissed. Leave to file appeal stands refused. ` . (SHRIHARI P. DAVARE), JUDGE. dbm/crap1011.11