( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 75 OF 2010 Premchand s/o Bansilal Kucheria APPLICANT VERSUS Shivdas s/o Sonaji Kokane & another RESPONDENTS .... Mr. Anand Chaware, advocate for the applicant. Smt. Sadhana S. Jadhav, advocate for the respondent No.1. Mr. N.H. Borade, APP for the respondent No. 2/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 1st September, 2010] PER COURT : 1. By this application, original complainant seeks leave to appeal against judgement of acquittal rendered by the learned Judicial Magistrate (F.C.), Jalna in S.T.C. No. 2155/2007 for offence punishable under section 138 of the Negotiable Instruments Act. 2. Having heard learned counsel for the parties and on perusal of the impugned judgement, it is amply clear that the issuance of dishonoured cheque by the respondent No. 1 is undisputed. The defence of the respondent No. 1 was that the liability to pay the amount of Rs. 75,000/- as shown in the cheque was wrongly foisted on him though he was not the ( 2 ) borrower of the said amount. The learned Judicial Magistrate held that the applicant had no capacity to lend the amount. It is observed that the applicant himself had borrowed certain loan and was paying interest over the said loan of Rs. 50,000/- borrowed from Jalna Peoples Cooperative Bank in or about August, 2006. It is required to be examined whether inspite of the applicant being borrower himself, he could have lent the amount of Rs. 75,000/- to the respondent No.1. He had also produced acknowledgement issued by the respondent about the payment. So also, negative burden is cast on the respondent No. 1 to establish as to how the presumption available under the Negotiable Instruments Act would be of no avail. Considering these aspects and the reasons ascribed by the learned Judicial Magistrate, it prima facie appears that it is necessary to re-consider the facts and circumstances on basis of the evidence adduced before the trial Court. Consequently, leave to appeal is granted. The application is allowed. Smt. S.S. Jadhav waives for the respondent No. 1 in the appeal and hence, no action under section 390 of the Criminal Procedure Code is required to be taken. [V.R. KINGAONKAR] JUDGE NPJ/criapln75-10 ( 3 )