1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 845 OF 2007 Vijay Enterprises represented by its C.A. Prakash R. Shenai ...Appellant vs. State of Maharashtra & Anr. ...Respondents Mr.Prakash R. Shenai, Appellant appearing in person. Mrs.R.V. Newton, APP for the State. CORAM : V.M. KANADE, J. DATED : MARCH 19, 2010 P.C. :- 1 Heard appellant who is appearing in person. 2 The appellant is challenging judgment and order passed by the learned Special Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai, dated 16th March, 2007 which was pleased to dismiss the complaint filed by the appellant against the 2 respondent herein and also pleased to acquit the respondent of the offence punishable under Section 420 of the IPC. 3 In the complaint which is filed by the appellant, the complainant had alleged that his wife was a proprietor of M/s.Vijay Enterprises and an excavator machine was given on lease to the accused. An agreement was executed between the parties and it was agreed that he would use the machine for at least 250 hours per month and would pay the rent accordingly. According to the complainant, the accused used the machine from 1.2.94 to 20.4.94. The amount of Rs.1,69,111/- was due and payable by the accused. However, the said amount was not paid by he accused. Hence, a notice was sent by the complainant calling upon him to make the said payment. However, the said amount was not paid. Therefore, the present complaint has been filed. Process was issued. Charge was framed. The complainant examined himself and did not examine any other witness. He produced number of 3 documents on record. The complainant was cross- examined at length and in cross-examination, he admitted that he had no other document to show that the accused was a proprietor of M/s.Frandom Enterprises. He also admitted that M/s.Frandom Enterprises had made payment of Rs.1,50,000/- out of the total sum of Rs.2,83,250/-. In the cross- examination, he also admitted that he was deposing on behalf of the proprietor on the basis of the Power of Attorney executed by his wife. The Power of Attorney was also produced. The trial court disbelieved the evidence of the complainant and also held that the complainant ought to have examined proprietor Mrs.Prabha Shenai since the evidence as a Power of Attorney can not be given on behalf of the proprietor. The trial court also observed that from the evidence which was given by the complainant, no case was made out for the offence punishable under Section 420. 4 The complainant who is appearing in person, 4 firstly, submitted that he has given evidence not only as a Power of Attorney of the proprietor but he had also specifically stated that he was working as a Manager and therefore, he was aware of the facts of the case. He submitted that therefore, the observations made by the learned Magistrate were illegal since the Magistrate had proceeded to examine the evidence of the complainant on the footing that he is a Power of Attorney of the proprietor. Secondly, it was submitted that the accused had admitted in the cross-examination that he had received various sums of monies from his contract. It was submitted that though he received the said amount, he did not pay this amount to the complainant. It was submitted that therefore, the order of Magistrate was liable to be set aside. 5 It is not possible to accept this submission. The trial court has observed that the evidence of the complainant does not inspire confidence and after going through the material on 5 record, the trial court has come to the conclusion that offence punishable under Section 420 is not borne out of the record. In my view, there is no infirmity in the order passed by the trial court. The view taken by the learned Magistrate is a probable view and this court cannot substitute its own view to the view taken by the learned Magistrate. The accused has paid an amount of Rs. 1,50,000/- and certain amount was not paid. At the highest, the complainant would have filed a civil suit for recovery of the balance amount. It cannot be said that the accused had intention to cheat the complainant. 6 Hence, leave to file appeal is refused. Appeal does not survive. (V.M. KANADE, J.)