1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3370/2009 ...... Jalna Peoples Cooperative Bank Limited Applicant V E R S U S The State of Maharashtra and others. Respondents. Shri A. S. Bajaj, Advocate for the applicant. Mrs. B. R. Khekale, APP for R-1 Shri D.P. Palodkar, Advocate for the respondent - 2 CORAM : SHRIHARI P. DAVARE, J. DATE : 20 th JULY, 2010 PER COURT : 1. Heard learned counsel for respective parties. 2. This is an application preferred by the applicant/original complainant seeking leave to file appeal against judgment and order dated 4.8.2009 passed by learned Judicial Magistrate First Class, Jalna in STC No. 814/2008, acquitting respondent No.2/original accused for the offence punishable under section 138 of Negotiable Instruments Act. 3. I have perused the impugned judgment and order of acquittal dated 4.8.2009 and record and proceeding with the assistance of learned 2 counsel for the parties. 4. It is alleged that accused obtained loan of Rs. 20,000/- from the complainant bank under the employee guarantee loan scheme and in discharge of said liability of loan amount, accused issued cheque of Rs. 50,000/- to the complainant on 19.3.2008. It is also alleged that said cheque was presented for encashment by the complainant, but it was dishonoured and was returned unpaid. Hence, complainant issued statutory notice to the accused on 27.3.2008 and it is alleged in said notice that said notice was received by the accused however accused did not comply with the requisitions contained in the said notice. Hence, after completion of necessary formalities, complainant filed complaint against accused under section 138 of Negotiable Instruments Act before learned Judicial Magistrate First Class, Jalna. 5. Accused appeared and plea of the accused was recorded. He pleaded not guilty to the charge levelled against him and claimed to be tried. 6. Accordingly complainant adduced oral evidence and examined two witnesses as well as produced documentary evidence where as accused examined himself. Considering evidence on record, learned trial judge arrived to the conclusion that accused is not guilty for the offence with which he was charged and acquitted him by judgment and order dated 3 4.8.2009. 7. Being aggrieved and dissatisfied by said judgment and order of acquittal applicant/complainant has preferred present application seeking leave to file appeal against the same. 8. The defence of the accused is that complainant had obtained blank cheque while granting loan and it has been misused by the complainant. It is also his case that Jalna Cooperative Sugar Factory has accepted the guarantee to deduct the amount of installments of loan from the monthly salary of accused and accordingly for every month the amount of installment had been deducted and he has paid the entire amount which was outstanding against him through the Karkhana. According to accused till March, 2004, Sugar Factory has totally deducted Rs.33,150/- from his salary although in fact accused was liable to pay Rs.25,500/- only to the complainant Bank and consequently it is the contention of the accused that on the issuance of cheque there was no legally enforceable debt against him. 9. Learned trial judge has observed in the judgment that after considering the evidence on record complainant adduced evidence of Sunil Dyama and also examined one more witness namely Anil Lahoti and it is observed that there is inconsistent evidence on the point of issuance of cheque. It is observed that Sunil Dyama admitted in his cross examination that 4 Cheque Exh.27 was not issued by accused on 19.3.2008 and said very admission goes to the root of the matter and consequently learned trial judge come to the conclusion that cheque had not been issued on 19.3.2008, but it was obtained prior to that and therefore the defence of the accused appeared to be probable and therefore acceptable and hence burden was shifted upon the complainant to prove that on 19.3.2008 Rs.50,000/- was total outstanding amount against the accused and to discharge said debt accused issued the cheque. In the said context, the complainant produced extract of ledger. Learned trial judge observed that there is no proper certification as required under section 4 of Banker’s Book Evidence Act and therefore said extract of ledger is not admissible in evidence although it is exhibited it cannot be read in evidence. Accordingly, learned trial judge come to the conclusion that there is no other evidence on record to show that there was pre-existing liability on the accused to pay Rs.50,000/- to the complainant. 10. Considering evidence on record learned trial judge has also observed that amount of Rs.33,150/- has been already deducted from the salary of accused by Karkhana, in order to pay it to the complainant Bank. If the said amount is not paid by Karkhana to the complainant bank, the remedy is open to the complainant to recover the said amount by initiating 5 proper proceeding as the Karkhana has accepted the guarantee to repay the loan amount by deducting the amount of installments from the monthly salary of accused, it was incumbent on it to sent the said amount to the complainant Bank. When the Karkhana has already deducted the amount of loan, how the complainant can claim again amount of Rs.50,000/- from accused. Hence, accused is not liable to pay double amount since he had already paid the amount to the Karkhana from his monthly salary. Hence, under these circumstances, it cannot be accepted that accused issued cheque in discharge of his liability for repayment of loan and consequently observed that considering all reasons cheque has not been issued by accused for legally enforceable debt. 11. After scrutinizing and analyzing evidence on record, view adopted by learned trial judge is a possible view to be adopted and no perversity is found therein. Moreover, reasoning adopted by the learned trial judge while arriving to the conclusion that accused is not guilty for offence under section 138 of Negotiable Instruments Act and consequently acquitting him cannot be faulted with and no interference is warranted under the Appellate jurisdiction and therefore present application deserves to be rejected. 6 12. In the result, present application bears no substance, same is devoid of any merits and same stands dismissed. Leave to file appeal stands refused. 13. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ..... aaa/3370.09