1 5195.10 Cri.Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5195 OF 2010 Fayaz Khan S/o Ahmed Khan ... APPLICANT VERSUS Subhash Dattu Patil & Anr ... RESPONDENTS ..... Shri A.D. Kasliwal, Advocate for the applicant Shri S.S. Rathi, Advocate for the respondent No. 1 Shri N.H. Borade, APP for the respondent No. 2 /State ..... CORAM : U.D. SALVI, J. DATED : 21 st September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. Acquittal of the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’), in S.C.C. NO. 2780/2005, by the learned Judicial Magistrate, First Class, 7th Court, Aurangabad on 03-09-2010, has prompted the present leave application under Section 378(4) of the Criminal Procedure Code, 1973. 2 5195.10 Cri.Appln. 2. It was the case of the complainant, that he had paid an amount of Rs. 5,63,000/- to the accused between December-2000 and December, 2003, towards the land deal and got executed ‘Esar Pavti” from ‘Mahar Hadola Inam’ land holders through accused, and when land deal did not materlize, he had obtained the cheque in question namely cheque No. 062059, dated 02-02-2005 for Rs. 5,68,000/- drawn on Shri Chatrapati Rajshri Shahu Urban Co-op. Bank Ltd., Beed from the accused, and the said cheque was dishonored, for the reason of insufficiency of funds in the account of the accused. 3. This very transaction of issuance of the cheque was denied by the accused in response to the notice of demand sent by the complainant to the accused. The accused specifically contended in his reply to the said notice that he had lost the cheque book for which he had lodged a complaint with the police, and the cheque in question was one of those cheques lost, and the same has been misused by the complainant. 4. In the trial, the complainant was the sole witness to substantiate his case. The accused examined himself and the Accountant of the said Shri Chatrapati Rajshri Shahu Bank Ltd., Beed in defence. 3 5195.10 Cri.Appln. 5. Learned Advocate Shri Kasliwal for the applicant, submitted that the testimony of the complainant is sufficient to reveal the guilt of the respondent / accused, more particularly, for the reason of presumption mandated by Section 139 of the N.I. Act. He further submitted that the evidence of the accused failed to rebut this presumption. He argued that the respondent / accused had not instructed his bank to stop the payment upon loss of his cheques, and this cast doubt on the defence evidence. In support he cited Judgment delivered by the Hon’ble Apex Court in the case of “ Rangappa V. Sri Mohan, reported in ALL SCR (2010) 1349”. 6. Reading of Judgment in Rangapp’s case (referred supra), reveals that the presumption mandated by Section 139 of N.I. Act includes presumption regarding existence of a legally enforceable debt or liability and for rebutting this presumption standard of proof is that of “preponderance of probabilities”. 7. The complainant in his examination-in-chief had deposed that the cheque in question (Exhibit 21), was written and signed by the accused in his presence and same was issued in response to demand for repayment of the amount paid by him towards the said land deal. He further deposed that the accused 4 5195.10 Cri.Appln. gave a false reply to his notice dated 05-03-2005. In his cross- examination it is revealed that he was not in a position to give exact date and month, when he came to know that he is one of the partners for entering into the said land deal, and he was not aware as who was the third partner in the purchase of the said land. He was not in a position to give dates of the payment made towards the said land and did not have any receipt for such payment allegedly made. He further deposed that he had not issued any notice or initiated any legal proceedings against the accused for violation of the agreement concerning to the said land deal. It appears that he was also not aware whether respondent/accused obtained grant of permission from Collector to buy the land belonging to ‘Mahar Vatan”. 8. On the other hand, the accused flatly denied having any transaction, much less the alleged land deal with the complainant and also denied issuance of the cheque in question. He testified that he had not signed the cheque in question and it was one of the cheques which was lost by him and misused thereafter by the complainant. He brought on record the report made to the police (Exh. 45) regarding loss of cheques. In his cross-examination he deposed that on 28-01-2005, he came to know about missing of his cheque book and he had obtained 5 5195.10 Cri.Appln. cheque numbers of the lost cheques from the bank, and yet had not reported loss of the cheques to the bank. His cross-examination reveals that he had not taken any action against the complainant for alleged misuse of cheque by him. He was emphatic in making the statement that his signature was one type only. Later on, when confronted with signatures on the documents (Exhibit Nos. 39, 43 & 45), he averred that some times there used to be slight difference in mode of his signature. However, curiously he was not confronted with the cheque (Exhibit 21) in his cross-examination, and thereby the complainant lost an opportunity to elicit facts concerning the hand-writing and signature on the cheque (Exhibit 21). 9. DW-1 Dilip S. Bhillare Accountant with Shri Chatrapati Rajshri Shahu Urban Co-op. Bank Ltd., Beed, with reference to the specimen signature on record (Exhibit 39) and the cheque (Exhibit 21), averred that there is no similarity in signatures on the same. Except eliciting a fact that after giving a specimen signature by the account holder, there could be change in the mode of signature nothing was further brought on record in the cross-examination to demolish the averments regarding the dissimilarity between the signatures on the specimen card (Exhibit 39) and the cheque (Exhibit 21). This material fact in the evidence in conjunction with 6 5195.10 Cri.Appln. the other evidence on record confers credibility to the defence that the cheque was not issued by the accused. In any case, the accused is not expected to establish his defence beyond reasonable doubt but show it from the evidence on preponderance of probabilities. The respondent / accused succeeds in rebutting the presumption mandated by Section 139 of N.I. Act. Verdict of acquittal therefore, remains flawless. Leave is, therefore, refused. The application and appeal stand disposed off finally. ( U.D. SALVI, J. ) SDM* September-11