(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 4724 of 2010 Sunil Raju Anna Nadar, Age : 40 years, Occupation : Service, R/o. Uttamnagar, Jawahar Colony, Garkheda, Aurangabad. .. Applicant. versus 1. The State of Maharashtra, Through Public Prosecutor, High Court Bench At Aurangabad. 2. Shri Paras J. Jain, .. Respondents C/o. Shri Bora (Pankaj Steels), (No.2 - Original Galli No. 3, Pundalik Nagar accused) ....................... Mr. Ramesh C. Kulkarni, Advocate, for the applicant (Absent). Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.1. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 11TH AUGUST 2011 COURT'S ORDER : 1. Learned Adv. Mr. R.C. Kulkarni, for the applicant, absent. Heard learned APP Smt. Y.M. Kshirsagar, for respondent no.1. 2. This is an application preferred by the applicant (original accused) seeking leave to file appeal challenging the judgment and order dated 26-10-2010, rendered by the learned Magistrate, 2nd Evening Court, Aurangabad, in S.C.C. No. 4169/2010, thereby acquitting present respondent no.2 i.e. original accused, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. I have perused the impugned judgment and order dated 26-10-2010, with the assistance of the learned Additional Public Prosecutor appearing for respondent no.1. 4. Parties are hereinafter referred to as as per their original status i.e. complainant and accused. (3) 5. At the outset, learned Counsel for the applicant, as well as, learned Additional Public Prosecutor for respondent no.1, were heard on the last date for considerable time and learned Counsel for the applicant requested for adjournment to enable him to take instructions from the complainant whether he gave admissions in the cross examination that he was having commercial transactions / relation with the respondent. However, learned Counsel for the applicant is absent today, and and has not complied with the said order. 6. Considering the aforesaid background, and coming to the present case, the facts in brief, are that the complainant and accused were having cordial relations with each other, and the accused approached the complainant and requested to pay Rs. 32545/- as hand loan for business purpose and agreed to repay the same within one month and assured to give post dated cheque for discharging the liability. Considering the cordial relations and dire necessity of the accused, the complainant advanced Rs. 32,545/- to the accused. After receiving the amount, the accused issued cheque bearing No. 023087, dated 8-6-2010, drawn on Kopargaon People Cooperative Bank Ltd., Branch at Aurangabad, towards repayment of the said hand loan amount to the complainant. Accordingly, the complainant presented the said cheque for encashment purpose, but it was returned unpaid and (4) dishonoured by the bank with memo dated 10-6-2010 with remark "fund insufficient". Thereafter, the complainant issued demand notice to the accused on 21-6-2010 through his Advocate and called upon the accused to make payment of the said cheque amount. However, the accused refused to accept the said notice inspite of the intimation given to the accused by the postal authority, but the notice sent by U.C.P. was duly served upon the accused. Accordingly, it is the contention of the complainant, that inspite of knowledge of notice, he failed to repay the cheque amount within the stipulated period, and hence, complainant filed complaint against the accused before learned Judicial Magistrate (First Class), Aurangabad, under Section 138 of the Negotiable Instruments Act, 1881. The statement of the complainant was recorded under Section 200 of Cr.P.C. and process was issued against the accused under Section 204 of Cr.P.C. Accordingly, accused appeared therein and his plea was recorded and he pleaded not guilty and claimed to be tried. 7. To substantiate the case of the complainant, the complainant filed his affidavit in lieu of examination in chief and also produced the disputed cheque in question at Exhibit 19, Bank memo at Exhibit 20, office copy of notice at Exhibit 21, Postal receipt at Exhibit 22, receipt of U.P.C. at Exhibit 23, R.P.A.D. Envelope at Exhibit 24, and acknowledgment receipt at (5) Exhibit 25. 8. Learned trial court has observed that during cross examination of the complainant, he admitted that the complainant and the accused had commercial relationship. He has further admitted that he is working as Police Constable in Commissioner area of Aurangabad since last 14 years. During cross examination, he has also admitted that his salary is Rs. 15,000/- per month excluding deductions and his expenditure is about Rs. 5,000/- per month. He has also admitted that he knows the accused since last one year. Hence, learned trial court observed that it is up to the complainant to show that from which account he paid the cheque amount of Rs. 32,545/- to the accused. Further, during cross examination, the complainant admitted that they were having commercial relationship. The accused has also admitted that he received some amount as hand loan from the complainant. Hence, the learned trial court observed that the complainant must show his lawful income, and if without having lawful income, he gives hand loan, it can be presumed that he does unlawful activities like money lending, and consequently, observed that the complainant failed to prove it. It is further observed by the learned trial court, that as per Section 139 of the Negotiable Instruments Act, presumption is in favour of the complainant, that it is only in respect of lawful debt or liability, (6) and consequently, learned trial court observed that though the cheque in question was issued for debt or liability, it was not issued for lawful debt or liability, and hence, the complainant cannot avail the presumption under Section 139 of the Negotiable Instruments Act. 9. It is further observed by the learned trial court, that the complainant being a Police Constable, was having commercial relations with the accused, but as there is no document on record about his commercial relations, it can be gathered from the record, that the complainant indulged his money lending business in the society. Accordingly, learned trial court held that the cheque was not issued towards discharge of legally enforceable debt, and consequently, acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, and there is no flaw in the observations made by the learned trial court. 10. Having comprehensive view of the matter, it appears that after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view, and the reasoning adopted therefor, cannot be faulted with, and hence, no interference therein is warranted in the appellate jurisdiction, and therefore, present (7) application deserves to be rejected. 11. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka4724