1 Cri.Appln.No.1412/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1412 OF 2010 Mirza Nasim Baig s/o Musa Baig ... APPLICANT VERSUS Dnyaneshwar @ Raju Madhukar Bhosikar ... RESPONDENT ..... Shri P.S. Agrawal, Advocate for the applicant Shri N.N. Shinde, Advocate for the respondent ..... CORAM : U.D. SALVI, J. DATED : 13th September, 2011. PER COURT : 1. Heard. Perused application and the record. Learned Judicial Magistrate, First Class, Kalamnuri acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act in S.C.C. No.256/2005, on 24.12.2009. Leave is now being sought to challenge this verdict. 2. It was the case of the complainant that, as a proprietor of Huma Stone Depot, he had dealings with the accused and the accused had purchased building material from the complainant, and for the payment of the price of the goods purchased, the 2 Cri.Appln.No.1412/2010 accused had issued cheque in question i.e. cheque No.602125, for Rs.70,000/-, drawn on Marathwada Gramin Bank, in favour of Huma Stone Depot on 3.3.2005. The complainant further alleged that the said cheque was dishonoured for want of insufficient funds in the Account maintained by the accused in the said Bank and despite the notice dated 5.4.2005 being served on the accused, he failed and neglected to make good the said payment within 15 days from the service of the notice. 3. The applicant examined himself and one Rajesh Telgute, Manager, Marathwada Gramin Bank, Balapur Branch and none else. The accused examined one Manish Ghuge, Manager, Balapur Branch of Nagnath Urban Cooperative Bank Ltd. and one Mr. Dattatraya Sarode, Shop Inspector. The accused, besides denying the prosecution evidence, made assertion that the complainant is not the proprietor of Huma Stone Depot and he owed nothing to the complainant. 4. Learned trial Court, on appreciation of the evidence, noticed lack of evidence to reveal the ownership of the complainant of Huma Stone Depot and the alleged transactions of sale and purchase of building material between the complainant and the accused. In the evidence, there has been dithering stand of the 3 Cri.Appln.No.1412/2010 complainant regarding the ownership of Huma Stone Depot. In the examination-in-chief, the complainant claimed to be the proprietor of Huma Traders while in the cross-examination, he changed his stand and claimed to be the partner of his cousin in respect of Huma Stone Depot. At the end of the evidence of both the parties, he moved an application to place on record a power of attorney of one Mirza Matin Baig, whose name surfaced as the proprietor of Huma Stone Depot in the evidence of the defence witnesses. This application was rejected on merits and the order of rejection attained finality. 5. Nonetheless, nothing was brought on record by the complainant to evince the fact of the alleged transaction/s of sale and purchase of building material which formed the basis of the alleged debt for the satisfaction of which the cheque was allegedly issued. Observations of the learned trial Court that the accused has discharged the burden by bringing the relevant facts in the cross-examination of the complainant, therefore, cannot be faulted. No interference in the impugned judgment and order is warranted. Leave is refused. The application is rejected. ( U.D. SALVI, J. ) fmp/cri1412.10