1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.439 OF 2010 Nimbhora Station Phal Bagayatdar Sahakari Phal Vikri Society Ltd. Nimbhora Station, Tq. Raver, District Jalgaon, through its Managar. - APPLICANT (orig.Complainant) VERSUS Ashok s/o Devchand Patil - RESPONDENT (Orig.Accused) ***** Mr.MB Bharaswadkar,Advocate for Applicant; Mr.BR Kedar Advocate, for Respondent. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 9th August, 2010. PER COURT: 1) Heard learned respective Counsel for the parties. 2) This is an application preferred by the applicant(original complainant), seeking leave to file appeal against the judgment and order of acquittal dated 2nd September, 2009, rendered by 2 learned Judicial Magistrate, First Class, Raver in SCC No.940/2005, acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3) According to the complainant, it is a registered society, engaged in sale of fertilizers and the accused herein had purchased the fertilizers for an amount of Rs.1,90,600/- during the period from 25.9.2004 to 3.10.2004 and issued a cheque, bearing No.943133 for the said amount, towards repayment of the purchase of fertilizers. The said cheque was presented by the complainant for encashment, however, it was dishonoured and returned unpaid on 31.3.2005. At the request of the respondent, the complainant again presented the said cheque for encashment, but that time also same was dishonoured and returned unpaid on 28.4.2005. Thereafter, the complainant issued a statutory notice to the respondent on 17.5.2005, which was received by the accused on 21.5.2005. However, the respondent did not reply the notice, nor complied with the requisitions contained therein. Hence, after observing the necessary formalities, the complainant filed a complaint before the learned JMFC, Raver under Section 138 of N.I.Act. The accused appeared therein and denied the 3 liability. The complainant examined three witnesses in support of its case, whereas the accused neither examined himself nor examined any defence witness but put forth his defence through the cross-examination of the complainant and his witnesses and also through the statement recorded under Section 313 Cr.P.C. 4) After appreciating evidence on record, the learned JMFC, Raver came to the conclusion that the accused is not guilty of the charge levelled against him and acquitted him for the offence under Section 138 of the N.I.Act. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant/complainant has preferred the present application, seeking leave to file appeal against the same. 5) I have perused the impugned judgment and order of acquittal dated 2nd September, 2009 rendered by learned JMFC, Raver and Record & Proceedings, with the assistance of learned Counsel for the parties. 6) At the outset, after considering the oral and documentary evidence on record the learned trial Judge observed that the complainant has nowhere averred in the complaint that accused 4 – Ashok Devchand Patil is the owner/proprietor of Vishal Keli Group as well as not proved and established the same and in fact the learned trial Judge has observed that the accused was not carrying such business during the relevant period, i.e. 25.9.2004 and 3.10.2004 and, therefore, arrived at the conclusion that it cannot be held that the accused issued the cheque in question to the complainant for and on behalf of Vishal Keli Group. 7) It is the defence of the accused that there was no legally enforceable liability against the accused and accused was not indebted to the complainant in respect of the aforesaid amount and Vishal Keli Group was necessary party in the present complaint, but same was not joined as well as the complainant has failed to prove and establish that the complainant supplied the fertilizers to the accused, as alleged. Moreover, he also contended that the bank memo does not reflect any date and accordingly, it was contended by the accused that the complainant has failed to prove and establish the alleged offence and, therefore, submitted that he be acquitted. 8) As regards the aspect of legally enforceable debt against the accused, the complainant has produced three receipts from 5 Arihant Road-ways in respect of supply of fertilizers to the accused. But, the learned trial Judge has observed that, it is not established that the said receipts were issued by whom and in whose favour; as well as the said receipts disclose that 140, 160 and 260 bags were sent, but the said receipts do not indicate the contents of the said bags, nor they disclose price thereof. It is further observed by the learned trial Judge that the complainant has not produced CST, BST receipts (office copies) and there is no evidence in that respect except bare words of the complainant and consequently, the learned trial Judge came to the conclusion that the complainant has failed to prove and establish legally enforceable debt against the accused. 9) Since the accused has probabilized his defence, the burden of proof was shifted upon the complainant to prove and establish that there was legally enforceable debt against the accused but apparently, as observed by the learned Trial Judge, the complainant has failed to discharge the same. 10) After scrutinizing and analyzing the evidence on record, the view adopted by the learned trial Judge appears to be a possible view to be adopted and no perversity is found therein. 6 Moreover, the reasoning adopted by the learned trial Judge also cannot be faulted with and hence the present application deserves to be rejected. 11) In the result, the present application, being sans merits, stands dismissed. Leave to file appeal stands refused. R. and P. be sent back to the concerned court. (SHRIHARI P.DAVARE) JUDGE bdv/