1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLN NO. 2314 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. DATED : 11.03.2010 Heard Shri. D.S. Bagul, learned Advocate for applicant and Shri. P.K. Adkine, learned Advocate holding for Shri. Kishor Sant, Advocate for the respondent. This is an application for leave to file appeal against the order of acquittal passed by Judicial Magistrate (F.C.) (Court No.7), Dhule in S.T.C.C. No. 6251/03 decided on 21.11.2008 whereby the respondent/accused was acquitted of offence punishable under section 138 of Negotiable Instruments Act, 1881. 2 The present appellant who was original complainant has filed a private complaint against the respondent alleging that the appellant is Civil Engineer doing business of construction of residential houses at Dhule. The respondent is doing milk business in the vicinity of Kumar Nagar, Dhule. Both are residents of same locality. The father of the appellant had cordial relations with respondent and the respondent used to visit the house of the appellant. The respondent had taken loan from Dhule Vikas Co-Operative Bank Ltd. Dhule and the loan outstanding was Rs. 13,60,000/- and he was in dire necessity of money otherwise his property which was mortgaged with the bank would have been sold in auction and in these circumstances, the complainant/appellant deposited an amount of Rs. 13,60,000/- to the loan account of accused and for satisfaction of the loan, the respondent issued cheque no. 026030 of Rs. 13,60,000/- of Dadasaheb Rawal Co-Op. Bank Ltd., Dondaicha dated 1.8.2003. When the cheque was deposited for encashment, it 3 was dishonoured on 16.9.2003 on the ground of insufficient funds. Thereafter, appellant issued notice to respondent on 19.9.2003. Inspite of notice, the amount was not paid and hence the complainant was lodged complaint. The trial court, after holding enquiry, came to the conclusion that it was not proved by the applicant/ complainant that he had paid amount of Rs. 13,60,000/- in the bank and cheque was not issued in discharge of debt or other liability. In para 13, the trial Court has observed that complainant admitted that his yearly income is Rs. 2,00,000 to 3,00,000/-. He failed to state exact figure of earning during the year 2003-04. Income tax returns are produced on record and the income for accounting year 2004-05 was stated to be Rs. 1,13,008/-. It is also observed by the trial court in para no. 13 that the complainant/accused has not disclosed the transaction of loan to the respondent for satisfaction of loan by complainant on behalf of respondent in the income tax return. However, 4 learned Advocate drew my attention to the balancesheet as on 31.3.2004 which was said to have been enclosed with the income tax returns. If we have regard to the liabilities and assets. It appears that complainant had taken bank loan of Rs. 7,41,196/- from Rajwade Bank, Rs.1,00,000/- from Arjun Palhani and Rs. 20,000/- from Durgadevi Palhani. His current liability included payments more than Rs. 8 to 10 lacs, whereas fixed assets were shop furniture, one plot at Walwadi and amount in account. But all of them do not exceed Rs. 9,00,000/-. The amount of Rs. 13,60,000/- was said to be current asset shown in the name of present respondent. Question is when the complainant himself was owing loan of Rs. 8 to 10 lacs, whether he would have paid loan of some acquaintance, that too, of Rs. 13,60,000/-. It is not that complainant was guarantor for the bank loan obtained by the respondent, and therefore, he was obliged to repay the loan. The question arises whether the complainant had sufficient resources to pay the amount. Moreover, further 5 discussion in para nos. 15,16 and 20 shows that there were transactions between complainant and accused relating to some plot. It was plot no. 7 in survey no.7/2. Exh.43 is the agreement of sale executed in respect of plot. That was executed for Rs. 7,00,000/-. The sale deed was to be executed on 1.8.2003. On that day, sale deed was written on stamp paper but before registration, the respondent said to have fled away from the Registrar's office and thereafter the complainant demanded amount of Rs. 13,60,000/-. It is said that without any document, said amount was deposited by the complainant in the bank on 1.8.2003 and for discharge of that liability, cheque dated 1.8.2003 was issued. It is worthy to note that all these things had happened on same day. There is also release deed exh.65 in favour of respondent and his wife which clearly shows that amount was paid by the respondent. So far as this part is concerned, it is argued that receipts exhs.72 & 73 are in possession of complainant. In any case, the transaction is not simple as it appears 6 on record and the benefit of doubt is rightly given by the trial court. In these circumstances, it is not a fit case to grant leave to file appeal. Hence the application is dismissed. [P.R. BORKAR,J.] vsm/criappln231409