1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2839 OF 2009 Sayyed Abdul Hamid Ismailsab - APPLICANT VERSUS 1) The State of Maharashtra & Anr. - RESPONDENT ***** Mr.M.P.Gude,Advocate for Applicant; Mr.S.D.Kaldate,APP for Respondent No.1-State; Mr. S.P.Urgunde, Advocate for Resp.No.2. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 6th July, 2010. PER COURT : 1) Heard learned Counsel for the respective parties. 2) This is an application preferred by the applicant (original complainant) seeking leave to file an appeal against the Judgment and Order dated 18.4.2009 passed by the learned 4th Judicial Magistrate, First Class, Latur, in S.T.C.C.No. 2 4135/2006, acquitting the respondent no.2 (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3) I have perused the impugned judgment and order of acquittal dated 18th April, 2009 with the assistance of learned Counsel for the parties. 4) The respondent no.2(original accused) faced the trial for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.C.C.No.4135/2006. It is alleged by the complainant that the complainant owns a truck bearing No.MWU-5002. The Natural Sugar & Allied Industries, Ranjani, i.e. the sugar factory, had hired the said truck of the complainant for the purpose of transporting the sugarcane. It is also alleged that during the crushing season for the year 2005-2006, the complainant had given the contract of cutting and loading of the sugarcane in the said truck for its transportation to the 3 accused. It is also alleged that after commencement of the said season, for some period the accused performed his contract and on various occasions the accused received the amounts of wages by way of advance from the complainant. Thereafter, he abandoned the said contract. Hence, the complainant repeatedly requested the accused to perform his contract and also asked him to return the advance amount of Rs. 1,25,000/-. However, the accused kept on avoiding the said payment and lastly issued a cheque dated 12th August, 2006 for an amount of Rs.1,25,000/-. The said cheque was presented for clearance however, it was dishonoured. Therefore, the complainant issued a notice, but the respondent failed to comply with the requisition contained therein. The complainant after observing the necessary formalities, filed the complaint against the accused under Section 138 of the Negotiable Instruments Act before the learned 4th JMFC, Latur, however, the said complaint came to be dismissed and the accused 4 was acquitted for the offence under Section 138 of the N.I. Act by way of the judgment and order dated 18th April, 2009. Being aggrieved and dissatisfied by the said Judgment and order of acquittal, the complainant preferred the present criminal application. 5) On perusal of the impugned judgment and order of acquittal, it appears that the learned trial Judge has observed in paragraph 21 thereof that, on perusal of the cross-examination it transpires that at one instance he deposed that there exists a written record with him showing the amounts that are paid by him to the accused, but, on the other hand, he deposed that he does not possess any receipt showing amount paid by him to the accused. He further admitted that he has not obtained any receipt regarding payment of Rs.1,25,000/- from the accused, nor there exists any documentary proof with him to show such payment. Hence the learned Judge observed, it is clear that the version of the complainant is 5 virtually shattered on the point of proving the factum of consideration, which is the foundation for invoking the presumption under Section 139 of the N.I. Act. 6) The learned Trial Judge further observed in paragraph 26 that except the cheque, there exists no independent evidence on record in the form of books of account, receipt in writing showing payment of said amount of Rs.1,25,000/-. Mere admission of signature on the cheque is not sufficient. Moreover, by bringing on record certain circumstances, the accused has probablized his defence that complainant is not a holder in due course as contemplated by Section 8 of the N.I. Act. Under such circumstances, mere cheque is not sufficient to prove the factum of existence of legally enforceable debt or other liability as contemplated by the explanation appended to the proviso of Section 138 of the N.I.Act. Ultimately, the learned Trial Judge concluded that the complainant has failed to 6 prove the factum of issuance of cheque by the accused in his favour towards the discharge of legally enforceable debt or other liability. 7) Apparently, after scrutinizing and appreciating the evidence, the view adopted by the learned Trial Judge is a possible view to be adopted and it does not appear to be perverse and, therefore, no interference therein is warranted in the appellate jurisdiction. 8) In the result, the present application bears no substance and the same is devoid of merit and, therefore, the same stands dismissed and leave to file an appeal stands refused. (SHRIHARI P.DAVARE) JUDGE bdv/cran2839.09