{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.407 OF 1998 Ajaysingh Kripalsingh Pawar R/o Shrinagar, Udgir, Tq-Udgir Dist-Latur APPELLANT VERSUS 1. Gulabsingh Kripalsingh Pawar R/o Dwase Building, Near Mandir Jalkot Road, Udgir, Dist-Latur At present Uday Talkies, Udgir Dist-Latur 2. The State of Maharashtra RESPONDENTS ....... Mr.S.V.Chillarge, Advocate for respondent No.1 (Absent) Mr.N.R.Shaikh, Assistant Public Prosecutor, for respondent No.2 ....... [CORAM : V.R.KINGAONKAR, J.] DATE : 18th September 2009 ORAL JUDGMENT : 1. This appeal is directed against judgment of acquittal rendered in Criminal Case bearing STC No.1041/1993 for offence punishable u/s 138 of the Negotiable Instruments Act and u/s 417 of the Indian Penal Code. {2} 2. None appeared for the appellant and respondent No.1. The appellant was served with a notice to make arrangement for engaging some other advocate because the earlier advocate appearing on his behalf was elevated to the Bench. Inspite of service of such notice, the appellant did not appear in this Court nor made any alternate arrangement. The appeal is old one and, therefore, I have gone through the impugned judgment as well as the record and proceedings, with the help of learned Assistant Public Prosecutor, Mr.Shaikh. 3. There is no dispute about the fact that the respondent No.1 issued the cheque in question. There is also no dispute about the fact that the appellant presented the cheque for realization on two occasions, i.e. on 11.03.1992 and 09.05.1992. Both the times, the cheque was dishonoured for the reason that cheque amount could not be paid due to insufficiency of funds in the account of respondent No.1. The defense of respondent No.1 was that he had signed a blank cheque and had given it to the appellant by way of security for payment of Rs.40,000/-, which he had agreed to pay in the context of civil litigation (RCS No.377/1990), which ended in compromise in the Loknyayalaya on 22 nd December 1990. 4. The appellant failed to give satisfactory explanation for issuance of the cheque of Rs.1,00,000/-. The appellant admitted that there was a suit for partition between himself and the respondent No.1, which was settled by way of compromise in the {3} Loknyayalaya. It is pertinent to note that the appellant and respondent No.1 are real brothers interse. The appellant further admitted, unequivocally, that as per terms of the compromise, respondent No.1 was required to pay Rs.40,000/- to him and each of the two brothers. He further admitted that he had no other dispute with respondent No.1. Considering these admissions of the appellant, (CW-3 Ajaysingh), the learned Judicial Magistrate reached conclusion that defense of respondent No.2 was probable. It is important to note that the civil litigation was going on since 1990 and, therefore, the brothers were at logger-heads. It was improbable to expect the appellant to part with Rs.1,00,000/- and give it to respondent No.1. On the contrary, when the dispute was settled by way of compromise in the Loknyayalaya, it is more probably that the respondent No.1 had issued the cheque in order to create security for the payments to be made to the appellant and his two brothers. Needless to say, the cheque was issued not against liability to pay any existing debt or to satisfy the existing liability as such. In this view of the matter, I do not find any substantial reason to interfere with the judgment of the acquittal. 5. In the result, the appeal is dismissed. [V.R.KINGAONKAR, J.] drp/criapl407-98