1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.1364 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Mrs. Natasha Shetty ...Applicant (Orig.Complainant) Vs. 1.State of Maharashtra 2.Mrs. Rimpi Chib ...Respondents (Orig. Accused) Mr. S.V.Marwadi i/b. S.P. Narkar, Adv., for Applicant Mr. Shailesh Kantharia, Advocate for Respondent No.2 Mrs. A.A. Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 21ST NOVEMBER, 2009 P.C. 1.This application is for leave to appeal against the order of acquittal passed by the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai on 4th December 2008. 2.The criminal prosecution under Section 138 of the Negotiable Instrument Act came to be lodged upon two dishonoured cheques for Rs.2,00,000/- and Rs.2,57,000/- dated 28th March 2007 and 10th May 2007. The amount representing the total sum of Rs.4,57,000/-paid by the 2 complainant to the accused is shown to be paid as follows:- (i) Rs.50,000/- on 22/11/2006 by cheque (ii) Rs.1,00,000/-on 21/11/2006 in cash (iii) Rs.80,000/- on 04/12/2006 by cheque (iv) Rs.1,00,000/-on 28/12/2006 by cash and (v) Rs.1,27,600/-on 12/02/2007 in cash 3.Hence, as per the statement of the complainant, the complainant paid various amounts by way of friendly loan on 5 different dates. The first by cheque, the second in cash then again by cheque, then again in cash and the last in cash. Towards these 5 transactions she had in her possession two cheques issued by the accused. The two cheques are stated to be given well after 5 loans are advanced. This case of the complainant has been appreciated by the learned Metropolitan Magistrate. In view of the defence of the accused that the two cheques were blank cheques issued for securing the amounts of Rs.50,000/- and Rs.80,000/- paid by cheques, the accused admits her liability under the two loans of Rs.50,000/- and Rs.80,000/- paid by cheques. 3 4.Surprisingly though two cheques are taken by way of security, five separate advances are shown to be made. If those two cheques were given on the dates mentioned, those two cheques were taken well after the five transactions. The complainant therefore, secured herself for five transactions well after those transactions were completed by payment of amounts to the accused by only two cheques. 5.There is nothing to show even a receipt in respect of amounts paid. The reasoning of the learned Magistrate that the oral evidence cannot be accepted and the accused is entitled to benefit of doubt cannot be faulted. 6.Leave to appeal is refused. (SMT. ROSHAN DALVI, J.)