1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3745 OF 2007 Subhash S/o Ganpatrao Nimbalkar .... APPLICANT V E R S U S Sanjay S/o Prataprao Patil .... RESPONDENT Shri. A.R.Mohane, Advocate. for Applicant. [ CORAM : R.M.BORDE, J. ] DATE : 08/06/2009 ------------------------------------------ PER COURT : 1. This is an application seeking leave to present Appeal against the order of acquittal recorded by the 2nd Jt. Judicial Magistrate (First Class), Nilanga on 18/8/2007 in S.C.C. No. 1399 of 2005. The applicant presented complaint under Section 138 of Negotiable Instruments Act complaining dishonour of cheque which was issued by respondent/accused. 2 2. It is the case of the complainant that he had purchased a xerox machine after securing finance from Mahatma Phule Development Corporation. The complainant was not in a position to pay the instalments. As such, he entered in to an agreement for the sale of the said machine for the amount of Rs. 1,75,000/- with accused and the accused had towards the consideration for purchase of machine, issued a cheque for the said amount which was presented by the complainant with the Bank. However, as the funds were insufficient in account maintained by accused, the cheque was dishonoured. The complainant as such issued a notice to the accused calling upon him to pay amount, which was returned back with an endorsement that the accused is not found on the given address. The complainant thereafter proceeded to present the complaint alleging commission of offence by the accused punishable U/s 138 of Negotiable Instruments Act. After recording the evidence led by the complainant, the trial Court found that the complainant has not substantiated his case and as such directed acquittal of the accused. 3. I have perused the Judgment recorded by the trial Court and also heard arguments advanced by the learned counsel for the applicant. It appears on perusal of Judgment that the alleged debt or liability incurred by the accused is not towards legally enforcible transaction. The 3 complainant himself had no authority or entitlement to alienate xerox machine which was secured by him after obtaining finance from Mahatma Phule Development Corporation. There was an agreement between the Corporation and the complainant to the effect that he would repay the loan payable towards the finance Corporation and will not be entitled to dispose of the goods. In violation of the terms of the agreement entered with the finance Corporation, the complainant has alienated the property/xerox machine secured by him. The transaction entered into by the complainant with the accused is not of such a nature which can be legally enforced. Apart from this aspect, it has been observed by the trial Court that the notice as contemplated by Section 138 of Negotiable Instruments Act before launching the prosecution, has not been served on the accused. This is one more reason for holding the accused not guilty. The view adopted by the trial Court appears to be reasonable and probable and as such no interference is called for in an Appeal against an order of acquittal. The Criminal Application seeking leave to present Appeal, therefore, stands rejected. Consequently, the Appeal does not survive and stands dismissed. [ R.M.BORDE ] JUDGE knp/CRIAPPLN3745.07 4