1 crap841.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 841 OF 2011 Nitin Sumatilal Sanghavi ...Applicant [Orig.Complainant] VERSUS Sau. Varsha Nandkishor Pathak ...Respondent [Orig.Accused] ..... Shri R.S.Shinde, advocate h/f Shri N.L.Chaudhari, advocate for applicant Shri Raje, advocate h/f Shri C.R.Deshpande, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 2nd December, 2011 PER COURT : 1 Heard respective learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order of acquittal dated 6.9.2010, rendered by the learned Judicial Magistrate, First Class, Dhule, in S.C.C. No. 3133 of 2007, 2 crap841.11 thereby acquitting the respondent (original accused) from the charge under Section 138 of the Negotiable Instruments Act. 3 Parties, hereinafter referred to as “the complainant” and “the accused”, as per their original status. 4 I have perused the impugned judgment and order, dated 6.9.2010 and the R. and P. with the assistance of learned counsel for the parties. 5 It is apparent that although the statutory notice was issued by the complainant to the accused on 19.5.2007, the complainant did not file the complaint within the period of limitation, but same was filed on 6.9.2007, and hence, it is clear that the complaint in the present case has been filed by the complainant beyond limitation, and the observations to that effect made by the learned Trial Court cannot be faulted with. 6 Moreover, the complainant admitted in his cross- examination that the amount of Rs.50,000/- was handed over by his mother to the husband of the accused, but the said amount has neither been shown in the income tax return, nor the mother of the complainant has been examined by him. Moreover, the complainant admitted in the cross-examination that he lent money to number of 3 crap841.11 persons as stated therein, such as Sohanlal Khivsara, Sanjay Ghodge, Ayajuddin Shaikh, Sunita Shah, Vinod Patil and Jagdish Joshi and the said amounts have not been returned by them to him and he has filed the complaint under Section 138 of the Negotiable Instruments Act. It apparently strengthens the defence of the accused that the complainant carried out the business of private money lending, and accordingly, the accused has established the said defence on preponderance of probability and the said defence appears to be probable. 7 In the circumstances, after scrutinizing and analysing the evidence on record, the view adopted by the learned Trial Court while acquitting the accused is a possible view and same does not appear to be perverse, and hence, no interference therein is warranted in the appellate jurisdiction, and therefore, present application deserves to be rejected. 8 In the result, present application stands dismissed and leave to file appeal is refused and present application is disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap841.11