1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4507 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R. Borkar, J. Date : February 16, 2010 1. Heard Shri M.M. Nerlikar, learned Advocate for the applicant. 2. This is an application seeking leave to file appeal against the order passed by the learned Judicial Magistrate, First Class, Parbhani in S.C.C. No. 379 of 2008 decided on 31.10.2009, whereby present respondent is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. 3. Learned Advocate Shri Nerlikar took me through the judgment of the trial court. The acquittal is 2 mainly on the ground that no debt or other legal liability was proved. Paragraph 4 of the judgment which refers to the deposition of the complainant indicates that he had come with a case that he had been working as a Live Stock Development Officer and retired from the service, whereas the respondent- accused was working as driver working with one Anil Mohagaonkar, the transport contractor. Since 1998, the complainant used to help the respondent-accused from time to time. Their relations were strengthened and continued even after retirement of the complainant in the year 2003. In August, 2007 the complainant, on oral request of the accused, paid him an amount of Rs.1,20,000/= as a hand loan for transport business and the accused assured to repay the same within three months. Although repeated demands were made the amount was not 3 paid, ultimately the respondent issued a cheque which was dishonoured. So notice was issued to accused on 24.12.2008, still he did not pay the amount. 4. In cross examination, the complainant-petitioner stated that he did not know with whom the accused was working. He stated in the complaint as also in his examination-in-chief that he paid amount to the accused in August 2007, but in cross examination the complainant stated that he paid amount on the date on which the cheque was given by the accused to him i.e. on 15.11.2007. There is also inconsistency as to where-from the amount of Rs.1,20,000/= was obtained by the complainant. Initially, complainant stated that he got Rs.4.00 lakhs as his retiral benefits which he had deposited in the State Bank of Hyderabad. Then he 4 stated that out of the amount lying at his house, hand loan was given to accused and not by withdrawing the amount from bank. Thereafter he further changed and stated that the amount was withdrawn from ATM in the name of his son Saluddin. It is observed by the learned trial judge that if really there was transaction as claimed by the complainant, he would not have given different answers in such a way. It is also observed by the learned judge that such a big amount cannot be withdrawn from ATM in a day. It has also been observed by the learned Judge that the complainant admits that he had filled in the contents of the cheque issued by the accused and that the accused had merely signed it. 5. The trial court relied upon the judgment of the Supreme Court in the case of Krishna Bhatta vs. 5 Dattatraya Hegde, 2008 (4) Mh.L.J. 354, in which it is laid down that the accused need not examine himself to prove his defence and discharge the burden on him, but he can rely upon the material already brought on record. 6. Considering the facts and circumstances, I am of the opinion that the reasons given by the learned Judge for acquittal are cogent and convincing and, therefore, the view taken is probable. This is, therefore, not a case wherein leave can be granted. 7. Hence, leave refused. Application rejected. Date: 16/02/2010 (P.R.BORKAR, J.) pnd/criap4507.09