1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4438/2009 Tulshiram Yadavrao Jadhav. Applicant. V E R S U S Jagannath Kerba Kshirsagar. Respondent Mr. A.I. Deshmukh h/f Mr. B.G. Deshmukh, adv. for applicant. Mr. S. R. Choukidar adv for respondent sole. CORAM : SHRIHARI P. DAVARE, J. DATE : 22 nd JUNE, 2010. PER COURT :- 1. Heard Mr. A.I. Deshmukh h/f Mr. B.G. Deshmukh, advocate for the applicant and Mr. S. R. Choukidar, advocate for respondent-sole. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal against judgment and order dated 12.11.2009 passed by 5 th Judicial Magistrate F. C. Nanded, in SCC No.619/2009 for the offence punishable under section 138 of Negotiable Instruments Act. 3. It is the contention of the applicant/original complainant that he and accused were acquainted with each other and accused 2 was badly in need of money for the marriage of his daughter, which was fixed in the month of May, 2006. Hence accused approached to the complainant on 10.4.2006 and requested him to pay hand loan of Rs. 75,000/- and promised to repay same till September, 2006. Accordingly, the complainant gave said amount to the accused. However, till 2009 accused avoided to repay the amount and finally issued cheque on 17.2.2009 for the amount of Rs.75,000/-. However, on presentation, said cheque was returned unpaid with endorsement “Funds Insufficient.” Hence, the applicant issued legal notice to the respondent after completing necessary formalities. However, accused did not comply with the contents in the said notice and therefore finally applicant filed complaint SCC No.619/2009 against respondent (original accused) before 5 th Judicial Magistrate F.C., Nanded. However, said learned judge acquitted the accused by judgment and order dated 12.11.2009 under section 138 of Negotiable Instruments Act. Being aggrieved and dissatisfied by the judgment and order, applicant has preferred present application, seeking leave to file appeal against the same. 4. I have gone through the impugned judgment dated 12.11.2009 as well as record and proceeding with the assistance of learned 3 counsel for the parties. 5. It is observed in the impugned judgment dated 12.11.2009 that the amount of Rs.75,000/- can be said to be a huge amount for a person who is above 68 years and retired in the year 1999 and is getting pension of Rs.500/- per month. Hence, learned trial judge observed that he was of the specific view that said transaction in the absence of source of income can be said to be indigestible. He further observed that there is absolutely no evidence on record to show as to from where the complainant managed to give the amount of Rs.75,000/- and said aspect has not been pleaded in the complaint. Hence, it is further observed by trial judge that transaction of alleged amount of Rs.75,000/- becomes doubtful because of the fact that since September 2006 till February, 2009 no such proceeding was initiated by the complainant against accused. Moreover, according to the learned Judge, there was no any document entered between the complainant and accused in respect of the present transaction in question. Hence, ultimately, learned trial judge held that the complainant has failed to prove the fact that accused issued the disputed cheque to complainant in discharge of his legal liability. 6. It is further observed by the learned trial judge in the 4 impugned judgment that, accused has brought on record sale deed Exh. 25 which shows that during the month of May, 2006 family of the accused got Rs.1,60,000/- out of the sale of agricultural land. In the said context, the learned counsel for respondents invited my attention to the fact that date of the sale deed was 17.5.2006 whereas date of marriage of daughter of accused was 19.5.2006 i.e. two days after the said sale transaction. Hence, it is canvassed that accused had got amount of Rs. 1,60,000/- out of said sale transaction prior to marriage and there was no necessity of funds to the accused for the marriage of the daughter, which was fixed on 19.5.2006 i.e. two days thereafter and proposition put forth by the learned counsel for the applicant/complainant that he gave hand loan to the amount of Rs.75,000/- is indigestible. 7. Having comprehensive view of the matter and considering rival submissions advanced by both learned respective counsel for the parties, I am of the view that, reasoning adopted by the learned trial judge cannot be faulted with and same appears to be proper. Moreover, view adopted by the learned trial judge after scrutinizing and appreciating evidence on record is a possible view and same doesnot appear to be perverse. Hence, no interference therein is warranted. 5 8. In the circumstances, present application bears no substance and same is devoid of any merits and therefore same deserves to be rejected. 9. In the result, present application stands dismissed and leave to file appeal stands refused. 10. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) AAA/4438.08 ***