1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4294/2007 Gautam Amolakchand Kothari .. APPLICANT VERSUS Sandu Bajirao Shelke & Anr .. RESPONDENTS .... Shri M.R.Challani,Adv. for applicant Shri S.K.Kadam,APP for Respondent no.2. .... CORAM : P.V.HARDAS,J. DATE : 12/06/2009 ORAL ORDER : This is an application filed by the applicant seeking leave to file appeal against the judgment of the trial Court acquitting the respondent accused for an offence punishble under Section 138 of the Negotiable Instruments Act. According to the complainant, accused had issued cheque towards payment of the fertilizer and cattle food 2 which was provided to the accused. According to the complainant, complainant deals in seeds, cattle food and fertilizers. The defence of the respondent accused was that he had taken hand-loan of Rs. 25,000/- from the complainant and at that time had tendered a blank cheque and after repayment of the same, the complainant had misused the said cheque. The trial Court found that the accused was taking contradictory pleas. However, weakness of the defence according to the trial Court could not buttress the prosecution case in order to overcome weakness in the prosecution case. The trial Court appreciated evidence of the complainant and came to be conclusion that the defence of the respondent-accused appeared to be probable in the light of the admissions elicited by the accused in the cross examination of the complainant. Though the trial Court came to the conclusion that the accused as a witness was not a reliable witness. The accused had taken a plea to discharge the burden by presumption under Section 139 of the Negotiable Instruments Act. 2. Mr.Challani, learned counsel for the applicant had placed reliance on the judgment of the learned Single Judge of this Court in Hemant Pavel Gracias V/s Socorro Santan Fernandes 2008 (1) Mh.L.J. 505 has urged before me that the accused had not replied to the notice issued by complainant and therefore, the defence of the respondent accused is an after thought. 3 3. It is true that in a given case, conduct of the accused not responding to the notice issued by the complainant may be considered as a circumstance which would reflect on the defence taken by respondent accused, however, no adverse inference can be drawn against respondent accused. In the present case, the respondent accused had examined himself as a witness and the trial Court by placing reliance upon the admissions obtained in the cross examination of the complainant came to the conclusion that the defence of the respondent accused appeared to be probable. This is an appeal against acquittal and merely because another view is possible, is no ground to entertain present appeal. 4. With the assistance of the learned counsel for the complainant, I have perused the findings recorded by the trial Court and according to me, the findings do not disclose any perversity in the reasonings of the trial Court to warrant any interference in this appeal Consequently, there is no merit in the application and the application is dismissed. Leave refused. [P.V.HARDAS,J.] umg/criapln4399-07