1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.:163 OF 2011 *** Gurunanak Fruit Company Savada through its proprietor Indrapritsing s/o Jagjeetsingh Paddal. VERSUS Kuber Sunatu Patil And Ors. *** Mr. Mukhedkar Amit A. Advocate for appellant. Mr.S A Pradhan Advocate For R/1 & 2 Mr. D.R.Korde APP For R/3 *** CORAM : SHRIHARI P. DAVARE, J. DATE : 2nd AUGUST, 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 dated 27.7.2010, rendered by learned Sessions Judge, Jalgaon in Criminal Appeal No.81/2006, thereby allowing said appeal and setting aside the judgment of conviction and sentence recorded by the learned Judicial Magistrate First Class and acquitting the accused 2 for the offence punishable under section 138 of Negotiable Instruments Act. 3. I have perused the impugned judgment dated 27.7.2010 and record and proceedings with the assistance of learned counsel for the parties. [The parties herein after are referred to as per their original status i.e.’complainant’ and ‘accused’.] 4. It appears that the applicant i.e. original complainant has filed complaint against accused under section 138 of Negotiable Instruments Act. Accused appeared therein and contested the same. However, by judgment and order dated 5.5.2006, passed by learned Judicial Magistrate First Class, Bhusawal the accused came to be convicted for the offence punishable under section 138 of Negotiable Instruments Act. Being aggrieved and dis-satisfied by the said judgment and order of conviction, accused preferred appeal before learned Sessions Court and same was allowed by the learned Sessions court, thereby setting aside the conviction and sentence recorded by learned Judicial Magistrate First Class and consequently acquitted the accused. The applicant i.e. original complainant has challenged the 3 said order in the present application, seeking leave to file appeal. 5. Admittedly, the cheque in question has been issued by the accused persons as Manager and Chairman of Hambardi Fruits and Vegetables Sales Cooperative Society Limited Hambardi, District Jalgaon, however the complaint appears to have been filed against accused persons in personal capacity and said Society has not been made party therein. Moreover, it also appears from the complaint Exhibit No.1 that there is no averment in the complaint that accused persons were in charge and responsible for the affairs of the said society at the relevant time. Moreover, complaint appears to be silent in respect of the role of the accused. In the said context, the reasoning given by the learned Sessions Judge in paragraph No.14 onwards in the impugned judgment appears to be sound and proper. Moreover, on the aforesaid background, it is also observed by the learned Sessions Court in paragraph No.25 of the said judgment that burden of proving all the facts lies on the prosecution, save and except for statutory exceptions. Though section 139 of the said Act creates a presumption about the cheque having been issued in discharge of a debt or other liability, it does not create any presumption that the account on which 4 the cheque is drawn is maintained by a person, or persons, who has, or who have, signed the cheque and therefore, learned Sessions Court observed that major requirement of Section 138 i.e. the offender must be one who has ‘drawn’ the cheque on an account maintained by ‘him’, is not established in the instant case and apparently there is no flaw in the said reasoning. 6. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned Sessions Court while allowing the appeal and acquitting the accused is a possible view and there is no glaring defect therein and, same does not appear to be perverse and reasoning adopted therefor also cannot be faulted with. Hence, present application seeking leave to file appeal against said judgment and order does not bear any substance and same is devoid of any merits and therefore, same deserves to be rejected. 7. In the result, present application seeking leave to file appeal is dismissed and leave to file appeal is refused. Record and proceedings be sent back to the concerned court. [ SHRIHARI P. DAVARE ] JUDGE ... AAA/