1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1850/2010 Mantha Urban Co-operative Bank Ltd., Mantha Through Rameshwar s/o Raosaheb Gange. Applicant. V E R S U S Digambar s/o Babasaheb Kakde and another. Respondents. Mr. M.R. Challani learned counsel for the applicant CORAM : SHRIHARI P. DAVARE, J. DATE : 7TH JUNE, 2010. PER COURT :- 1. Heard Mr. M.R. Challani learned counsel for the applicant. 2- The applicant has preferred present application seeking leave to file appeal against judgment and order dated 8.3.2010 rendered by learned Judicial Magistrate First Class Mantha in SCC No.2268/2008 acquitting the respondent no.1 for the offence punishable under section 138 of Negotiable Instruments Act. 3- I have gone through the impugned judgment dated 8.3.2010 2 with the assistance of learned counsel for the applicant. The applicant (original complainant) is financial institution and it is alleged that respondent no.1 had obtained loan of Rs.2,65,000/- from the complainant for the purchase of vehicle. It is also alleged that respondent no.1 issued cheque of Rs. 50,615/- on 17.1.2008 in favour of the complainant towards the repayment of the said loan but the said cheque was returned unpaid with the endorsement ‘insufficient funds’. Hence the applicant issued notice to the respondent no.1 on 28.1.2008 through advocate and same was served upon him on 4.2.2008. However, respondent no.1 did not comply with the contents in the said notice. Hence the complainant filed complaint against respondent no.1 on 5.3.2008 under section 138 of Negotiable Instruments Act. After recording verification of the complainant process was issued against respondent no.1 on 17.4.2009. Respondent No.1 pleaded not guilty to the charges leveled against him and complainant adduced evidence but the respondent no.1 did not adduce any evidence. His statement under section 313 of Code of Criminal Procedure is recorded and judgment was delivered by learned trial judge on 8.3.2010 acquitting the respondent no.1 from the charge under section 138 of Negotiable Instruments Act leveled against him. Being aggrieved and dissatisfied by the judgment and order applicant has preferred present application seeking leave to file appeal against said judgment and order of acquittal. 4- Apparently it appears that the complainant bank had issued No 3 Objection Letter to vacate the charge of complainant bank on the vehicle in question which is proved at Exh.29 on 1.6.2004 and accordingly charge of the complainant bank was vacated and said letter is produced at Exh.30. It also appears that thereafter respondent no.1/original accused has transferred/sold the said vehicle to third party namely Abdul Hafiz Abdul Hamid on 20.2.2006. Hence it is apparent that respondent no.1 (original accused)has rebutted the presumption under section 139 of Negotiable Instruments Act on preponderance of probability since the applicant herein has issued NOC to the respondent no.1 on 1.6.2004 and accordingly charge of the bank was vacated as per Exh.30 and even said vehicle was transferred to third party namely Abdul Hafiz Abdul Hamid and therefore respondent no.1 was not liable to repay any amount as alleged by the complainant-bank. 5- On perusal of impugned judgment, I am of the view that there is no perversity and view adopted by the learned judge after scrutinizing and appreciating the evidence is a possible view to be adopted and no interference therein is warranted under appellate jurisdiction. 6- In the result, application being sans merit stands dismissed and leave to file appeal stands refused. ( SHRIHARI P. DAVARE, J. ) ..... aaa/1850.10