(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 472 of 2010 With Criminal Application No. 479 of 2010 Criminal Application No. 472 of 2010 Anmol s/o. Vinayak Patil, Age : Minor u/g. of his grandfather Annarao s/o. Venkoba Biradar, R/o. Dhanegaon, Taluka : Deoni, District : Latur, At present : Udgir, .. Applicant Taluka : Udgir, District : Latur. (Original complainant) versus 1. Ashok s/o. Sadashiv Patil, Age : 35 years, Occupation : Service, R/o. Batanpur, Post : Lasona, Taluka : Deoni, Dist. : Latur. .. Respondents (No.1 - Original 2. State Government of Maharashtra. accused) ....................... (2) Criminal Application No. 479 of 2010 Abhishek s/o. Vinayak Patil, Age : Minor u/g. of his grandfather Annarao s/o. Venkoba Biradar, R/o. Dhanegaon, Taluka : Deoni, District : Latur, .. Applicant At present : Udgir, (Original complainant) Taluka : Udgir, Dist. : Latur. versus 1. Ashok s/o. Sadashiv Patil, Age : 35 years, Occupation : Service, R/o. Batanpur, Post : Lasona, Taluka : Deoni, Dist. : Latur. .. Respondents (No.1 - Original 2. State Government of Maharashtra. accused) ........................ Mr. A.S. Bayas, Advocate, for applicants in both Applications. Mr. V.D. Gunale, Advocate, for respondent no.1 in both Applications. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.2 in both Applications. ************** (3) CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST JULY 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. Criminal Application No. 472/2010 is preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 30-9-2009, rendered by the learned Judicial Magistrate (F.C.), Deoni, in S.T.C. No. 961/2008, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, whereas Criminal Application No. 479/2010 is preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 30-9-2009, rendered by the learned Judicial Magistrate (F.C.), Deoni, in S.T.C. No. 960/2008, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 3. I have perused the impugned judgments dated 30-9-2009, and also perused Record & Proceedings with the (4) assistance of the learned Counsel for parties. 4. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 5. At the outset, the applicant, namely, Annarao s/o. Venkoba Biradar, who is grandfather of two minor children, and posed himself as guardian of said children namely, Anmol and Abhishek, has filed the complaints against the uncle of the said children, namely, Ashok s/o. Sadashiv Patil,, under Section 138 of the Negotiable Instruments Act, 1881. It is alleged that the complainant, namely, Annarao Biradar had one daughter, namely, Aruna, who married with Vinayak Patil i.e. brother of respondent herein, in 1994, and out of the said wedlock, two children, namely, Anmol and Abhishek were born. It is also alleged that daughter of Annarao Biradar was illtreated for dowry and she expired on 16-11-2005 due to poisoning and hence, Annarao Biradar filed criminal complaint against husband Vinayak Patil and family members. Thereafter, the matter was amicably settled and Vinayak Patil executed two registered sale deeds dated 22-11-2005 in the name of said two children and transferred the land Gut No. 112 admeasuring 5 Hectare 31 R. in their favour. It is further alleged that after negotiations, the respondent (original accused) delivered two cheques in the name (5) of said children, namely, Anmol and Abhishek, with the consent of Vinayak Patil and family members, on the same day, to Annarao Biradar, in the presence of Panchas for an amount of Rs. 2,63,750/-, each. Accordingly, the said cheques bearing Nos. 610465 and 610466, dated 31-12-2006, were presented by the complainant on 2-1-2007, at Latur District Central Cooperative Bank Ltd., Branch Udgir. Those cheques were sent by the said Bank for realization to State Bank of India, Branch Deoni, where the accused was holding the account. However, those cheques were returned unpaid by the Bank on 20-1-2007 with the endorsement "funds insufficient". Moreover, the complainant again presented the said cheques for encashment purpose on 5-2-2007 and the said cheques were again returned with the endorsement "funds insufficient" on 7-3-2007. Hence, the complainant sent demand notice to the accused on 12-3-2007 by RPAD and UPC, but the same was refused by the accused on 22nd February 2007. Accordingly, since the accused did not make the payment of the said cheques, the complainant filed complaints under Section 138 of Negotiable Instruments Act and Section 420 of IPC. 6. On perusal of oral and documentary evidence adduced and produced by the complainant, there is no quarrel that the initial presumption is in favour of the complainant that (6) the accused issued the disputed cheques in question to the complainant towards discharge of liability / debt partly or in whole. However, the said presumption is rebuttable and accused put forth his defence, that the complainant obtained two blank signed cheques from the accused under the apprehension of filing case against the accused and the accused does not owe anything to the complainant, but the complainant misused the said cheques and filed false case against the accused. It is also defence of the accused that the complainant never gave any amount to the accused and there was no money transaction between the complainant and accused. 7. Considering the evidence adduced and produced by the accused in support of the said defence, and cross examination of the complainant, learned trial court has rightly observed that the accused has probabalised the said defence, and the learned trial court has further rightly observed that the accused has rebutted the presumption on preponderance of probability. 8. Hence, the burden shifts upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused on the date of issuance of the cheques by the accused and the accused issued the disputed cheques in question to the complainant towards (7) discharge of legally enforceable debt / liability partly or in whole. However, learned trial court has rightly observed that the complainant has miserably failed to prove and establish that the complainant ever gave money to the accused and there was ever money transaction between complainant and accused as it is admitted by the complainant in the cross examination and consequently, learned trial court rightly acquitted the accused for the alleged offence. 9. Apart from that, learned trial court has rightly observed that the responsibility of maintenance of children, namely, Anmol and Abhishek, is of father namely, Vinayak Patil and as per directions of the court dated 17-4-2007, the said children are in the custody of their father, namely, Vinayak Patil. Moreover, said Vinayak Patil has filed affidavit in this Court, that he is maintaining the said children. On the aforesaid scenario, the lame attempt made by the learned Counsel for the applicants, that the disputed cheques in question, were issued towards future maintenance of the children, bears no substance. 10. Besides that, learned trial court has rightly observed that the disputed cheques in question were issued on the apprehension of filing of the case towards settlement thereof which cannot be considered as a lawful transaction, and (8) therefore, also it cannot be considered that the cheques in question were issued towards discharge of any legally enforceable debt / liability. 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 no interference therein is called for in appellate jurisdiction, and hence, present applications deserve to be rejected. 12. In the result, present Criminal Applications which are sans merits, stand dismissed, and leave to file appeal is refused. 13. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka472etc