1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2022 OF 2008 Bhagwan s/o Gaindhal Chaudhari .. APPLICANT VERSUS Magan s/o Barku Dhangar .. RESPONDENT Shri P.S. Patil, Advocate for the applicant. ===== CORAM : R. M. BORDE, J. DATE : 1 st July, 2009. PER COURT : 1 This is an application tendered by the applicant seeking leave to file appeal against the order of acquittal recorded by the learned Judicial magistrate First Class, Shirpur on 22-1-2008 in STCC no. 496/2005. 2 Applicant had presented complaint under section 138 of the Negotiable Instruments Act contending that a cheque for an amount of Rs. 65,000/- was issued by the respondent / accused in his favour and on presentation of the cheque with the bank the same is dishonoured for the ground of ‘insufficiency of funds’. On presentation of the complaint, process was issued against the accused and in response to the process, the accused caused his appearance. After recording evidence of the complainant as well as that of the accused, trial court found that the complainant has not established his case and as such directed acquittal of the accused. 2 3 it is the case of the complainant that accused was in need of money for purchase of minodoor rickshaw and for said purpose, he has taken handloan of Rs.65,000/-. The defence of the accused is that there was transaction in respect of sale of minidoor rickshaw between the complainant and accused. Accused has purchased the vehicle from the complainant for consideration of Rs.95,000/-. An amount of Rs.30,000/- was paid in cash whereas further amount of Rs.65,000/- was to be paid after securing finance from the financial agency. Accordingly, accused borrowed amount from the finance agency and paid consideration of Rs.65,000/-. In the meantime, towards security of payment of Rs.65,000/- a cheque was issued in favour of the complainant which has been mis-utilised by him. Defence raised by the accused has been substantiated by him and on perusal of the cross examination of the complainant, it is evident that he (complainant) has in terms admitted that an amount of Rs.65,000/- has been deposited in his account by the finance company. He has further stated in the cross examination that he is not in a position to tell the court as to when the amount was deposited in his account and as to when he has withdrawn the amount. Admission given by the complainant in his cross examination substantially proves the defence raised by the accused. Learned trial Judge considering the admission given by the complainant has recorded finding that the complainant has not substantiated his case in respect of advancement of Rs.65,000/- in favour of the accused. Furthermore, there is no evidence in respect of advancement of the said amount by the complainant in favour of the accused. In this view of the matter, reasons recorded by the trial court cannot be said to be unreasonable or perverse. This is not a fit case for causing interference in the order of acquittal. 3 Application seeking leave to file appeal against the order of acquittal stands rejected. Consequently, appeal also fails and stands dismissed. ( R. M. BORDE, J.) dyb/office/criappln2022.08.odt