IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3895 OF 2008 Shri Dhanlaxmi Nagari Sahakari Pat Sanstha Maryadit, Karad. .. Applicant Versus Mali Krishi Udyog & Anr. .. Respondents Mr.Dilip Bodake for the applicant. Mr.Nilesh V. Pawaskar for respondent no.1. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th March 2009. : 25th March 2009. : 25th March 2009. P.C.: . Heard the learned advocate for applicant and the advocate for the 1st respondent. This is an application for leave to prefer an appeal under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). 2. The applicant filed a complaint alleging commission of offences under section 138 of the Negotiable Instruments Act, 1881 and section 420 of the Indian Penal Code. The process was issued for offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). The applicant is a Credit Society. According to the case of (2) the applicant, the 1st respondent had taken loan from the applicant and in discharge of liability of loan, he had handed over a cheque in the sum of Rs.1,25,000/- favouring the applicant. The said cheque was dishonoured. After issuing notice of demand, the applicant filed a complaint on which process has been issued. The order of acquittal has been passed by the learned Judge on accepting the defence of the 1st respondent that the entire liability of the loan was discharged by the 1st respondent and in fact a reconveyance was executed by the applicant in favour of the 1st respondent releasing the property of the 1st respondent which was given by way of security. Reliance is placed on No Dues Certificate issued by the applicant. The learned Judge held that the case made out by the applicant was very vague. The applicant had not pleaded details such as the amount of loan, the date on which loan was allegedly released, both, in the complaint as well as affidavit in lieu of examination in chief. The learned trial Judge also held that though an extract of the alleged loan account of the 1st respondent was produced, it was not proved in accordance with law. 3. The learned counsel appearing for the applicant (3) invited my attention to affidavit in lieu of evidence of the witness examined by the applicant. He submitted that the extract of loan account was duly proved by the said witness examined by the applicant. He invited my attention to a xerox copy of extract of account which is placed on record. His submission is that what is produced is a printout of the computerised account of the 1st respondent maintained by the applicant. He submitted that the witness examined by the applicant Mr.Rajiv Kundap has stated in his evidence that the contents of the said extract are true and correct and therefore, the said extract was proved which clearly establishes the liability of the 1st respondent to the extent of Rs.6,87,292/- as on 26th August 2006. He, therefore, submitted that the learned Judge has committed an error by passing an order of acquittal. 4. I have carefully considered the submissions. In the complaint as well as in the affidavit in lieu of examination in chief, the applicant has not set out the details such as the total amount of loan released in favour of the 1st respondent and the date on which loan was released. The applicant has simply stated that in discharge of payment of liability of the loan, the 1st respondent issued cheque in the sum of Rs.01,25,000/- (4) which was dishonoured. The witness examined by the applicant was cross-examined by the 1st respondent. In the cross-examination he admitted that the 1st respondent had obtained loan from the applicant by mortgaging immovable property in the year 1999. He admitted that the loan was repaid and Reconveyance Deed was executed by the applicant in favour of the 1st respondent. He also admitted that clearance/no dues certificate was issued by the applicant on 02nd June 2003 in favour of the 1st respondent. Though he denied the correctness of suggestion that the 1st respondent had not taken any loan thereafter, he admitted that no document has been filed on record to show that the applicant had advanced loan to the 1st respondent. 5. In the context of what is observed above and the admissions of the witnesses examined by the applicant, the learned trial Judge has considered the case of the applicant. In view of the vague averments in the complaint as well as in the affidavit in lieu of examination-in-chief and in view of the aforesaid admissions of the applicant, this was a case where by preponderance of probabilities the presumption under section 139 of the said Act stood rebutted. Therefore, the burden was on the applicant to show that liability (5) existed against which the cheque in dispute was issued. 6. The learned counsel appearing for the applicant submitted that by producing an extract of loan account of the 1st respondent, the applicant has established the liability of the 1st respondent. In paragraph 8 of affidavit in lieu of examination in chief the officer of the applicant has stated thus: "8. I have also produced on record the account extract of the loan account of accused maintained by the complainant Patsanstha. The said extract now shown to me is the same, its contents are true and correct, it bears signature of Bank Official which I identify, it is marked exhibit .... " 7. The learned counsel appearing for the applicant conceded that the applicant is not a bank within the meaning of Bankers’ Book Evidence Act, 1891. Therefore, special rule of evidence prescribed by the said Act of 1891 for proving the entries in the Bankers’ Book will not apply to the applicant. The witness examined by the applicant has not disclosed in the evidence that the applicant is maintaining the ledger and other account (6) books in computerised form. He has not stated that what is produced before the Court has been compared with the original ledger and the entries in the extract are true and correct as per the original. The original ledger was not produced to prove the said extract. The special rule of evidence incorporated in the said Act of 1891 for proving the entries in the Bankers’ Book by production of certified extract of Bankers’ Book is admittedly not applicable to the applicant. Therefore, the learned trial Judge was justified in coming to the conclusion that alleged extract of loan account produced by the applicant was not proved by the applicant in accordance with law. 8. In the circumstances, the view taken by the trial Court that the guilt of the 1st respondent is not proved is certainly a possible view which could have been taken on the basis of evidence on record. No case is made out for grant of leave. The application is rejected. 9. It is made clear that the observations made in this order are for limited purpose of deciding the prayer for grant of leave. None of the observations made in this order shall be construed as any findings on (7) the rights and liabilities of the parties. (A.S.Oka,J)