1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 18 of 2010 in Criminal Appeal No. /2010 Sangeeta Pehlajmal Zambhani ..VERSUS.. State of Maharashtra and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.G.Joshi, Advocate h/f Mr. Anil S. Mardikar, Advocate for the applicant. Mr. S.M.Bhagde, A.P.P. for the respondent No.1-State. Mr. Chhabra, Advocate h/f Mr. N.R.Saboo, Advocate for Respondent no.2 CORAM : Prasanna B. Varale, J. DATED : 07 th Octo ber , 2010 . Heard. This is an application filed by the applicant/original complainant for grant of leave to file appeal. The applicant is the original complainant. A Summary Criminal Case No. 970 of 2008 arising out of the complaint lodged by the applicant/complainant against the accused/respondent no.2 Jawahar Thrumal Kapoor, was decided by the learned Judicial Magistrate, First Class, Court No.8, Amravati and the accused/ respondent no.2 was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. It was the case of the applicant/complainant that she paid Rs.One lakh to the accused/respondent no.2 on the assurance that the same will be repaid within a period of six months. When the complainant demanded the amount, the accused/respondent no.2 expressed his inability to return the amount and in discharge of his liability, accused/respondent no.2 issued a post dated cheque of Rs.One lakh, dated 16/1/2000 (date as per application) drawn on UCO Bank, Amravati. The applicant presented the said cheque in his 2 bank for encashment, but the same got dishonoured for the reason of insufficient funds. A statutory notice was issued by the applicant/complainant, but inspite of receipt of the notice, the accused has neither repaid the amount nor relied the notice and as such the applicant/complainant was constrained to file criminal case before the Court. The learned trial court framed the points for consideration, which reads thus : (1) Whether the complainant proved that the accused has issued cheque bearing No. 601895 dated 16.1.2008 for Rs.1,00,000/- drawn on UCO Bank in favour of complainant which was dishonoured for insufficient funds and in spite of receipt of statutory notice, accused failed to repay cheque amount within 15 days ? (2) Whether the said cheque was issued by the accused in discharge of legally enforceable debt or liability i.e. for the repayment of hand loan to the complainant ? Learned Advocate for the applicant submits that, though the learned trial court answered the first point in his favour, on the second point trial court did not find favour of the complainant. He further submits that the court below has neither appreciated the facts nor considered the submissions of the complainant and arrived at erroneous conclusion. On consideration of the material on record, the court below has observed thus : “14. In the cross-examination by the counsel for accused, complainant admitted that she runs the tuition classes and works on sewing machine. Her father had expired and he was suffering for illness prior to one to two years of his death. Her father had also filed complaint of dishonour of cheque against accused and 3 he had issued some cheques to her father for the payment of the amount. She further admitted that she earns near about 5,000/- rupees per month. On these admissions, the question arises as to whether a prudent man or women earning Rs.5,000/- per month will issue a hand loan of Rs.1,00,000/- in cash to a person who is admittedly prior defaulter of the amount and against whom her father had filed the complaint case for dishonour of cheque. In my opinion, even though the earlier transaction is undisputed the answer to the question should be answered in the negative simply because no person will transact with a defaulter specifically for the large amount of Rs.1,00,000/- and that too after borrowing some part of the amount from her father. Even for the sake of argument if we presume that she had lend Rs.1,00,000/- to the accused after taking part of the amount from her father, will to be possible for a person to give that amount to his daughter when he had already filed criminal complaint against the same person to whom she was going to pay the hand loan. This story of the complainant does not appeal to my mind, and therefore, there is a clear cloud of suspicion on the transaction of the hand loan alleged by the complainant in the case, particularly in view of the fact that the complainant is merely earning Rs. 5,000/- per month that means coming from lower income group. In view of this, the story of complainant does not appears to be a probable one.” In my opinion, the court below has considered the material on record in its proper perspective and the view taken is probable. Learned Advocate for the applicant is unable to show that the view taken by the court below is contrary to the evidence or material available on record. I, therefore, find that no error is committed by the court below. Hence, the application for leave to file appeal is rejected. Consequently, the appeal fails. JUDGE Diwale