1 Cri.Appln. 2365.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2365 OF 2010 Narayan Mahipatrao Haran ... APPLICANT VERSUS Prakash S/o Baburao Chautmal ... RESPONDENT ..... Shri P.S. Agrawal, Advocate for applicant Shri S.K. Adkine, Advocate for respondent sole ..... CORAM : U.D. SALVI, J. DATED : 23rd August, 2011. PER COURT : 1. Heard. Perused the application and record and proceedings. 2. By this application a leave to appeal challenging the Judgment and Order dated 10-05-2010, acquitting the contesting respondent / accused Prakash of the offence punishable Under Section 138 of the Negotiable Instruments Act, 1881 (for short “ N.I. Act”), is sought. 3. According to the learned Advocate for the applicant the complainant in S.C.C. No. 691/2008 tried by the Judicial 2 Cri.Appln. 2365.10 Magistrate First Class, Biloli, Dist. Nanded, he had extended hand loan of Rs. 1,20,000/- to the respondent / accused on 10-05-2010, with an understanding of repayment of loan within two months, and as the repayment was not made the accused issued a cheque for Rs. 1,20,000/- in favour of the complainant. He further submitted that this cheque was dishonored for want of insufficient funds in the account of the accused with the Parbhani District Central Co- operative Bank Ltd., Parbhani. These facts according to the learned Advocate for applicant have given rise to the present case. 4. Countering to these submissions, learned Advocate for the contesting respondent, submitted that the learned Trial Court after considering every aspect of the transaction has rightly acquitted the accused. He pointed out that the accused had examined Sk. Mushtaq (DW-1) who had witnessed the fact that the accused had issued a blank signed cheque as a security for repayment of loan of Rs. 35,000/- obtained from the complainant, a money lender doing money lending business without licence, and the said cheque was misused in the present case. 5. The learned Advocate for the contesting respondent, submitted that the accused had succeeded in establishing a probable defence and with the examination of Sk. Mushtaq (DW-1) 3 Cri.Appln. 2365.10 had brought on record that the complainant has misused the cheque. 6. The learned Trial Court took into consideration the probabilities arising out of the evidence led by both the parties, and on the application of the ratio laid down in the following Judgments. “1] Anil Baburao Kataria V. Purushottam Kawane, reported in 2010 Cr.L.J. 1217. 2] Rajendraprasad Porwal V. Santoshkumar Saklecha 2008 Cr.L.J. 2955. 3] John V. Tom Varghese 2008 Cr.L.J. 434. 4] Krishna Janadardhan Bhatt V. Dattatraya G. Hegade AIR 2008 S.C. 1325.” gave findings that the defense has successfully shown carrying on of a business of money lending by the complainant without any licence and there existed no previous legally enforceable debt of Rs. 1,20,000/-, particularly for want of any co-lateral document evincing the alleged transaction. 7. It is well settled principle of law that accused in Criminal Trial is obliged to reveal a probable defence and put-forth a possibility in his favour. The evidence of PW-1 Narayan Harne the complainant reveals a fact that he has been pursuing two other 4 Cri.Appln. 2365.10 cases Under Section 138 of the N.I. Act, and there has been no co- lateral evidence corroborating his version of the alleged transaction. On the other hand, there is evidence of DW-1 Sk. Mushtaq, who asserts that a blank signed cheque was issued for repayment of loan of Rs. 35,000/- and not for Rs. 1,20,000/-, and despite the demands made by the accused on repayment of the loan of Rs. 35,000/- along with interest thereon totally aggregating to Rs. 50,000/-, the complainant failed and neglected to return the blank cheque. He also testified that the complainant was doing money lending business. 8. Visual comparison of the hand writing on paying slip (Exh. 20) used by the complainant to deposit the cheque in his bank and the hand writing on the body of the cheque (Exh. 29) would persuade an individual to believe that the author of the hand writing on the said documents is one and the same. The learned Trial Court was therefore right in holding that the defence succeeded in establishing a probable defense and brought on record the possibility of misuse of cheque. Leave is refused Application stands disposed off accordingly. ( U.D. SALVI, J. ) SDM*Aug.11