1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3551/2009 Kashinath Laxman Arote Applicant V E R S U S Dinkar Bhagwat Wakchaure Respondent Smt. Sadhana 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. 232/2007 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. Accused faced trial in STCC No.232/2007 for the charge under section 138 of Negotiable Instruments Act. In short, it is the case of the complainant that he was having land bearing gat No.98, 99 and 161 at village Mauje Jawla-Kadlag and in the year 2006, there was heavy crop of pomegranates. Accused along with Balnath Kadlag and Girish Kadlag approached to the complainant and allegedly purchased the pomegranates plot for consideration of Rs.4,00,000/- and started plucking the same. On 20.6.2006 he gave Rs.73,000/- cash and assured to give remaining sum after sale of the goods. The complainant refused it and therefore accused issued cheque of Rs. 2,27,000/- to the complainant drawn on the Sinnar Merchants Cooperative Bank Limited branch Thangaon. The complainant presented said cheque through Ahmednagar District Central Cooperative Bank Limited Branch Jalawale Kadlag however said cheque was dishonoured and was returned unpaid due to insufficient funds in the account on 26.2.2007. Hence, the complainant issued statutory legal notice to the accused on 21.3.2007 and same was served upon him but the accused failed to comply with the requisitions contained therein. Hence, after observing necessary formalities the complainant filed complaint which was registered under STCC No. 3 232/2007. 5. Accused appeared before the Court. His plea was recorded and he pleaded not guilty and claimed to be tried. Complainant examined himself and produced documents as well as accused examined himself and also produced documents in his defence. The defence of the accused emerged during the trial and in his statement under section 313 of Code of Criminal Procedure Code is that accused never entered into agreement with the complainant nor he purchased any pomegranates from the complainant. It is further the defence of the accused that brother-in-law of the complainant namely Sahebrao and he were business partners in Kamdhenu Krushi Seva Kendra in which they sustained loss and dispute arose between them and therefore Sahebrao took four blank signed cheques from accused and the complainant misused a cheque out of said cheques and filed present false complaint. 6. After scrutinizing and appreciating evidence, learned trial judge arrived at the conclusion that complainant failed to prove that accused issued cheque in question towards discharge of legally enforceable liability as well as held that complainant failed to prove that cheque was presented to the bank and returned by the bank unpaid and concluded that accused was not guilty and acquitted him. 4 7. 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. Apparently, no writing of the agreement was executed between the complainant and accused in respect of alleged transaction and therefore learned trial judge has rightly observed that when the complainant entered into transaction with the accused of such huge amount of four lacs, then he ought to have made written agreement with the accused, but so was not done. The transaction fixed between the complainant and accused was for Rs.4,00,000/-, out of which Rs.73,000/- were paid by the accused to the complainant as stated by him and the accused gave cheque in question of Rs.2,27,000/- and accordingly total of the said cash amount plus cheque amount comes to Rs.3,00,000/- but the complainant has no where explained the alleged liability of the accused towards repayment of balance sum of Rs. 1,00,000/- and therefore story of the complainant appears to be doubtful. 9. Learned trial judge also observed that land in question i.e. gat No.98 is in the name of wife of the complainant and not in the name of the complainant. Moreover learned trial judge observed that date mentioned on the cheque shows date as 2/2/207, and evidence and averments shows that cheque was issued on 2/2/2007 but the said date has not been mentioned on 5 the cheque in question and said date does not match with the oral evidence of the complainant which is a strong circumstance against the complainant. 10. Moreover, learned trial judge also observed in the impugned judgment that to establish the presentation of the cheque and return thereof, the complainant has to produce bank slip or memo having official mark thereon denoting that the cheque has been dishonoured. However, in the instant case, bank memo Exh.28 does not bear the official seal of the bank which is the requirement of section 146 of the Negotiable Instruments Act and therefore complainant has failed to prove presentation of cheque for encashment and its dishonour. So also the complainant has failed to examine any bank official to substantiate the dishonour of the cheque. So, also it is observed that, accused has probabilized his defence and complainant has failed to discharge his liability that cheque in question Exh.18 was issued by the accused to the complainant towards legally enforceable liability. 11. It is also pertinent to note that the complainant did not examine witnesses namely Balnath Kadlag and Girish Kadlag to substantiate his case, although they were present at the time of alleged transaction as per version of the complainant. It is also pertinent to note that, Krishi Utpanna Bajar Samiti has issued a certificate stating that accused herein did not possess licence from 2004-2005 and 2008-2009 for the sale and purchase of agriculture 6 produce and said certificate also conveys that accused was not authorized to sell and purchase pomegranates and hence said transaction in question also comes under doldrums. 12. Having comprehensive view of the matter reasoning adopted by the learned trial judge for acquitting the accused cannot be faulted with and view adopted by the learned trial judge after analyzing the evidence 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/3551.09