(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 497 of 2010 Padmakar s/o. Babanrao Digrase, Age : 25 years, Occupation : Agriculture, R/o. Lodga, Taluka : Ausa, District : Latur. .. Applicant. versus 1. Tukaram s/o. Nagorao Bansode, Age : about 50 years, Occupation : Agriculture, R/o. C/o. Maher Apang Niwasi Vidyalaya, M.I.D.C., Latur, District : Latur. 2. Suman Kasarkar, Age : about 45 years, Occupation : Service, R/o. as above. .. Respondents. ....................... Mr. S.S. Jadhavar, Advocate, for the applicant. Mr. S.V. Gundre, Advocate, holding for Mr. V.D. Gunale, Advocate, for respondent nos.1 and 2. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 17TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant seeking leave to file appeal challenging the judgment and order dated 18-12-2009, rendered by the learned 5th Judicial Magistrate (First Class), Latur, in S.T.C.C. No. 3435/2007, thereby acquitting the respondents (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. I have perused the impugned judgment dated 18-12-2009 and record and proceedings with the assistance of the learned Counsel for parties. 4. Parties are referred as per their original status i.e. accused and complainant. 5. The complainant's case, in brief, is as follows :- (3) It is alleged that the accused nos.1 and 2 are the office bearers i.e. President and Secretary, respectively, of Marathwada Handicapped Organization's sponsored, Multi-handicaps' Education, Care and Rehabilitation Centre, Latur, and the complainant was serving in the said institution between the period 2003 to 2006 as a Clerk and, therefore, were known to each other. It is alleged that in 2006, accused by saying institution's financial problem, obtained hand loan of Rs. 1,10,000/- from the complainant on the assurance that the said amount would be repaid within a period of 5 - 6 months. However, after the lapse of said period, accused did not repay the said amount to the complainant and hence, the complainant demanded the said amount from the accused. Therefore, accused nos.1 and 2, in the capacity of President and Secretary of the said Institution, issued cheque bearing No. 13783, dated 16-7-2007 for Rs. 1,10,000/- drawn on the bank of Maharashtra, to the complainant. Accordingly, the complainant presented the said cheque for encashment purpose to Laxmi Urban Cooperative Bank, Latur, on 16-7-2007. However, said cheque was dishonoured and returned with the endorsement "insufficient funds". Hence, the complainant sent demand notice through Advocate to accused on 27-7-2007 by RPAD / UPC, but respondent no.2 refused to accept the said notice. Same was (4) served upon him by UPC. However, respondent no.1 gave reply to the said notice on 3-8-2007 and thereby, admitted the repayment. It is alleged that respondent no.2 also gave reply on 18-8-2007, but did not repay the said amount. Hence, the complainant filed complaint against the accused under Section 138 of Negotiable Instruments Act. Accordingly, process came to be issued and the accused appeared in the said complaint and plea was recorded and the accused pleaded not guilty and claimed to be tried. 6. To substantiate the case of the complainant, he examined himself as well as examined two witnesses, namely, Anand Govind Hande and Baban Gangaram Digrase, and also produced original cheque in question and memo of the Bank Exhibit 47, and office copy of the notice sent by complainant to accused nos.1 and 2, Exhibits 51 and 52, reply sent by accused nos.1 and 2 thereto, at Exhibits 53 and 54, and envelopes of the said notices sent to accused, at Exhibits 55 and 56. 7. Considering the oral and documentary evidence adduced and produced by the complainant, initial presumption is raised in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act, that the disputed cheque in question was issued by the accused to the complainant towards discharge (5) of liability / debt in part or in whole. However, the said presumption is rebuttable by the accused and the standard of proof required therefor is on preponderance of probability. 8. Hence, the question arises whether the accused have rebutted the said presumption on preponderance of probability. In the said context, the accused examined himself at Exhibit 74 and also cross examined the complainant and his witness and recorded his statement under Section 313 of Cr.P.C. and put forth his defence. The defence of the accused is that the institution of the accused had no financial difficulty and the accused have not taken any hand loan from the complainant as alleged and the accused have not issued the disputed cheque in question towards the repayment of the said hand loan and date on the said cheque was put by the accused on the insistence of the complainant and accused never assured that said cheque would be honoured on the said date and the complainant presented the said cheque for encashment purpose without consent of the accused and the said cheque was not issued by the accused for encashment purpose. 9. Pertinently, the complainant admitted in the cross examination that while leaving job of the Society of the accused, the amount of Rs. 80,000/- was due towards salary to be paid to the complainant by the accused and on demand of the said (6) amount, disputed cheque in question was issued by the accused to the complainant. The complainant has also admitted in the cross examination that the principal amount of Rs. 80,000/- was due from the accused to the complainant and the complainant demanded amount of Rs. 30,000/- towards delayed payment, totaling Rs. 1,10,000/- and the disputed cheque in question was taken from the accused towards security thereof. Hence, considering the defence put forth by the accused and the admission given by the complainant in his cross examination and the evidence of the accused, and statement of the Accused recorded under Section 313 of Cr.P.C., it is apparently clear that the accused have rebutted the presumption on preponderance of probability. 10. Hence, since accused have rebutted the presumption on preponderance of probability, the burden shifts upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability against the accused and the disputed cheque in question was issued by the accused towards the discharge of legally enforceable liability / debt partly or in whole. However, although it was incumbent upon the complainant to prove the existence of legally enforceable liability / debt and issuance of said cheque towards discharge of legally enforceable liability / debt partly or in (7) whole, the complainant has failed to prove the same. On considering the evidence adduced and produced by the complainant, it appears that the complainant has failed to prove and establish beyond reasonable doubt that the complainant gave any hand loan to the accused, as alleged, as well as the complainant failed to prove and establish beyond reasonable doubt, that there existed any legally enforceable liability / debt, as alleged by the complainant against the accused, and further failed to prove and establish beyond reasonable doubt that disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable liability / debt partly or in whole. Hence, the learned trial court has rightly acquitted the accused and no interference therein is called for in appellate jurisdiction. 11. In the circumstances, the view adopted by the learned trial court after analyzing and appreciating the evidence on record, while acquitting the accused, is a possible view and the same does not appear to be perverse and the reasoning given therefor also cannot be faulted with, and hence, present application deserves to be rejected. 12. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. (8) 13. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka497