1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4130 OF 2009 Udhav Dhondiba Popalaikar ..Applicant V/s Dr.Sanjay Parsaram Ghatolkar and another. ..Respondents ..... Mr.M.D. Shinde, advocate for Applicant. Mr.M.P. Kale, advocate for respondent no.1. Mrs.B.R.Khekale, A.P.P. for respondent no.2. ..... CORAM : SHRIHARI P. DAVARE,J DATE : 12th July, 2010. PER COURT : 1. Heard Mr.M.D. Shinde, learned counsel for applicant(original complainant) as well as Mr.M.P. Kale, learned counsel for respondent no.1(original accused) and Mrs.B.R. Khekale, learned A.P.P. for respondent no.2. 2. This is an application preferred by applicant, seeking leave to file appeal against the judgment and order of acquittal dated 26.08.2009, rendered by the learned Judicial Magistrate, First 2 Class-8, Nanded in S.C.C. No.1835/2007, acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881. 3. I have perused the impugned judgment and order of acquittal dated 26.08.2009 and the Record and Proceedings with the assistance of learned counsel for the respective parties and learned A.P.P. for respondent no.2. 4. Respondent no.1 herein(original accused) faced trial in S.C.C. No.1835/2007 for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881. It is alleged that the accused issued cheque of Rs.99,750/- to the complainant, which was dishonoured and was returned unpaid. The complainant examined two witnesses to substantiate the charge against accused, whereas the accused also examined two witnesses in his defence. The allegations of the complainant are that the accused in the capacity of Director of Mahatma Phule Education Society, Aundha, assured to obtain sanction for 3 complainant to the posts of Assistant Teachers and Peons from BCERT New Delhi sending a proposal through his institution to run a child school, and for sending such proposal obtained amount of Rs.99,750/- towards its expenses and in failure of such sanction, in repayment of said amount the accused issued disputed cheque which is produced at Exh.25. 5. Hence on the face of the said allegations, the learned trial Judge has rightly observed that it is the duty of the complainant to show firstly, that the accused is the Director of Mahatma Phule Educational Society Aundha and he is authorised person to send the proposal for such sanction through said institution. Secondly, the complainant was required to prove that the amount of Rs.99,750/- was given to the accused towards the expenses for sanction. However, the complainant failed to bring on record any material to show that amount of Rs.99,750/- was given to the accused for lawful consideration and in repayment of said amount, the accused has issued disputed cheque to discharge legally enforceable liability. It is also rightly observed by learned trial Judge though 4 opportunity was given to the complainant, he failed to examine Mr.Kachru Sapate to prove his case and ultimately did not find the accused guilty and acquitted him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 6. Considering the aforesaid observations as well as conclusion drawn by the learned trial Judge, apparently, the view adopted by the trial Judge, after scrutinising and appreciating the evidence on record, is a possible view to be adopted and no perversity is found therein, and therefore, no interference is warranted therein in the appellate jurisdiction. 7. In the result, the present application bears no substance and same is devoid of any merits and same stands dismissed and leave to file appeal against the judgment and order of acquittal stands refused. Record and Proceedings be sent back to the concerned Court. (SHRIHARI P. DAVARE) JUDGE gas/cri4130.09