(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2651 of 2010 Shantaram s/o. Laxman Tade, Age : 34 years, Occupation : Business, R/o. Aamkheda, Taluka : Soygaon, District : Aurangabad. .. Applicant. versus Dipak s/o. Madhav Gaikwad, Age : 34 years, Occupation : Contractor, R/o. Jarandi, Taluka : Soygaon, District : Aurangabad. .. Respondent. ....................... Mr. R.O. Awasarmal, Advocate, for the applicant. Mr. M.M. Patil (Beedkar), Advocate, for the respondent. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. Learned Counsel for the applicant seeks leave to correct the surname of the applicant. Leave granted. Amendment be carried out forthwith. 3. This is an application preferred by the applicant (original complainant), seeking leave to file appeal challenging the judgment and order dated 22-2-2010, rendered by the learned Judicial Magistrate (First Class), Soyagaon, in Summary Criminal Case No. 283/2006, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 4. I have perused the impugned judgment and order dated 22-2-2010, and Record & Proceedings with the assistance of the learned Counsel for the parties. 5. Parties hereinafter are referred to as per their original status i.e. complainant and accused. (3) 6. Briefly stated, case of the complainant is that the complainant was carrying on business of sale of construction material under the firm named and styled as "Ashtavinayak Traders", and the accused was the Contractor at the relevant time. They had cordial relations with each other and it is alleged that the accused had taken hand loan from the complainant for various times, as well as, the accused had purchased the building material from the complainant. It is also alleged that in January 2006, the accused was in need of cash funds for the business, and therefore, he approached to the complainant and requested for hand loan of Rs. 40,000/-. Looking to the cordial relations between complainant and accused, the complainant handed over hand loan of Rs. 40,000/- to the accused, and the accused assured that he would repay the said amount in March 2006. Hence, the complainant demanded the said amount from the accused in March 2006. Thereupon, accused issued Cheque No. 829539, dated 1st March 2006, for Rs. 40,000/-, to the complainant, drawn on Aurangabad-Jalna Gramin Bank, Branch Jarandi. The complainant presented the said cheque on 25-8-2006 for encashment purpose. However, the said cheque was dishonoured and returned unpaid along with Bank written memo on 29-8-2006. Hence, the complainant sent demand notice to the accused. It is the contention of the complainant that although the (4) said notice was served upon the accused, he failed to repay the said cheque amount to the complainant, and hence the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act. Accordingly, process was issued and summons was sent to the accused. Accused appeared in the present matter and he pleaded not guilty and claimed to be tried. 7. To substantiate the complainant's case, he examined himself, as well as, two other witnesses, namely, Pralhad Ramdas Chaudhary and Prakash Shrawan Bawiskar. Moreover, he also produced disputed cheque at Exhibit 27, Bank written memo at Exhibit 28, and office copy of the notice sent to the accused at Exhibit 31, and written envelope thereof at Exhibit 30. 8. Considering the oral and documentary evidence adduced and produced by the complainant, it is apparent that initial presumption is raised in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act, that the accused issued the disputed cheque in question to the complainant towards discharge of liability. However, the said presumption is rebuttable and the standard of proof required therefor is on preponderance of probability. Hence, the question arises whether the accused has rebutted the said presumption. In (5) the said context, the accused put forth his defence through cross examination of the complainant, as well as, statement of the accused under Section 313 of Cr.P.C.. Accused neither examined himself nor any defence witness, however, he put forth his defence as aforesaid. His defence is that he did not commit any offence and the complainant filed false case against him, and therefore, he claimed to be innocent. Having survey of the cross examination conducted by the accused, of the complainant and his witnesses, as well as, considering his statement recorded under Section 313 of Cr.P.C., it is apparent that the accused has discharged the said burden on preponderance of probability and rebutted the presumption raised against him. 9. Hence, in the light of the said facts, the burden shifts upon the complainant to prove and establish beyond reasonable doubt, that there existed legally enforceable debt / liability and the disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable liability, partly or in whole. In the said context, it is apparent that the complainant has not produced any documentary evidence to prove and establish that he handed over hand loan of Rs. 40,000/- to the accused. Moreover, the complainant has not furnished any particulars that on which date the said transaction of hand loan took place and on which date the accused issued the disputed (6) cheque in question to the complainant, and the complaint filed by the complainant lacks the said particulars. Hence, it is apparently clear that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability against the accused and the accused issued the disputed cheque in question to the complainant towards discharge of legally enforceable debt / liability, partly or in whole, and hence the complainant failed to discharge the said burden beyond reasonable doubt. 10. In the circumstances, the learned trial court rightly acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, and the view adopted by the learned trial court, after analyzing and appreciating the evidence on record, while acquitting the accused, is a possible view, and the same does not appear to be perverse, and no interference therein is called for in appellate jurisdiction, and therefore, present application deserves to be rejected. 11. In the result, there is no substance in the Criminal Application, and the same is devoid of merits, and the same stands dismissed. Consequently, leave to file appeal is refused. (7) 12. Record and Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/2651ka