(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 5173 of 2010 Liladhar Rambhaji Lone, Age : 44 years, Occupation : Agriculture, R/o. Sakegaon, Taluka : Bhusawal, .. Applicant District : Jalgaon. (Original complainant) versus Dinkar Namdeo Choudhari, Age : 56 years, Occupation : Business, R/o. Proprietor, Vishal Intelligence, Security Services, Samarth Foods M.I.D.C., Behind Godavari Foundation, .. Respondent Near MRF Tyres, Jalgaon. (Original accused) ....................... Mr. Sunil A. Kulkarni, Advocate, for the applicant. Mr. Ajay G. Talhar, Advocate, for the respondent. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 5TH JULY 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order of acquittal, dated 23-9-2010, rendered by the learned Judicial Magistrate (F.C.), Bhusawal, in Regular Criminal Case No. 468/2005, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 3. I have perused the impugned judgment and order dated 23-9-2010, and also perused the Record & Proceedings with the assistance of the learned Counsel for parties. 4. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 5. Briefly stated, case of the complainant is that in response to the advertisement dated 21st March 2003, published (3) in "Dainik Deshdoot", for filling two posts of Shikshan Sevak in Shri Swami Samarth Madhyamik Vidyalaya, run by Shri Samarth Shikshan Prasarak Mandal, Khadgaon (Taluka : Jamner), the complainant applied for the said post. Accordingly, on 9-6-2003, he was interviewed and got appointment for 3 years on the post of Shikshan Sevak. It is alleged that above Educational Society is run by the accused, and as per requirement of the accused, the complainant gave some donation in presence of two witnesses. The complainant made demand for return of said donation. Thereupon, accused issued cheque bearing No. 2852547, for Rs. 1,20,000/- to the complainant on 28-3-2005, drawn on Jalgaon District Central Cooperative Bank Ltd., Khadgaon. On 4-8-2005, accused communicated the complainant that he is required to take permission of the Charity Commissioner for return of the said donation, and also communicated the Branch Manager of the Bank for cancellation of the said cheque. 6. Thereafter, it is alleged that on 21-8-2005, accused issued cheque for Rs. 1,80,000/- dated 4-8-2005, bearing No. 119366, drawn on United Western Bank Ltd., Branch Mehrun, and the said cheque was issued by the accused in the capacity of Proprietor for Vishal Intelligence Security Services. Accordingly, the complainant presented the said cheque for encashment purpose on 22-9-2005. However, it was dishonoured (4) and returned unpaid with the Bank return memo with endorsement "insufficient funds". Hence, the complainant issued demand notice to the accused on 11-10-2005, by R.P.A.D. and Under Certificate of Posting. However, the accused failed to make payment of the said cheque amount within the statutory period, and hence, accused filed complaint under Section 138 of the Negotiable Instruments Act. The process was issued against the accused and his plea was recorded, and he pleaded not guilty and claimed to be tried. 7. The complainant produced the disputed cheque in question at Exhibit 28; letter dated 21st July 2005 at Exhibit 29, counterfoil of pay in slip of the disputed cheque in question at Exhibit 30; Bank return memo at Exhibit 31, Memorandum of the Bank dated 3-10-2005, at Exhibit 32; copy of demand notice dated 11-10-2005 at Exhibit 33; postal receipts at Exhibits 34, 35 and 36, respectively; Postal acknowledgment of U.C.P. at Exhibit 37; R.P.A.D. receipt at Exhibit 38, and registered envelopes at Exhibits 39 and 40, respectively. 8. To substantiate the case of the complainant, he examined as many as three witnesses including himself, whereas the accused neither examined himself nor examined any defence witness. Considering the oral and documentary evidence (5) adduced and produced by the complainant, it is apparent that initial presumption is in favour of the complainant under Section Section 118(a) and 139 of Negotiable Instruments Act, that the accused issued the disputed cheque in question at Exhibit 28 to the complainant towards discharge of the liability. However, the said presumption is rebuttable under Section 139 of Negotiable Instruments Act, and the standard of proof required therefor is on preponderance of probability. 9. In the said context of rebuttable presumption, accused put forth his defence through cross examination of complainant and also through his statement recorded under Section 313 of the Code of Criminal Procedure, 1973. Although he did not examine himself nor any witness, defence of the accused is that on 19-8-2004, the complainant left his job voluntarily without informing the School or Society, and thereafter started demanding donation back. Hence, the accused on getting irritated of such demand, ultimately gave cheque of Rs. 1,20,000/- to the complainant on 28-3-2005. Accused came to know that for returning the donation, permission of Charity Commissioner was necessary, and hence, the complainant was informed accordingly. However, on 21-7-2005, all of a sudden, at about 3 p.m., the complainant, Rajendra Kashinath and Santosh Lone came to the residence of accused at Jalgaon in (6) M.I.D.C. Accused and his wife were at home. The complainant demanded Rs. 1,80,000/- towards principal amount of Rs. 1,20,000/- and interest thereon. The complainant threatened the accused and his wife, and hence, cheque in question was given by the accused to the complainant. Accused put forth the said defence through his statement recorded under Section 313 of Cr.P.C., as aforesaid. Moreover, the accused also lodged complaint with the Police authority about the said incident. Accordingly, the defence put forth by the accused appears to be probable one and hence, it is apparent that the accused rebutted the said presumption on preponderance of probability. 10. Hence, it is incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability of Rs. 1,80,000/- against the accused on the date of issuance of the cheque, but since the accused issued the said cheque in the capacity of Proprietor for Vishal Intelligence Security Services, and apparently, the complainant failed to prove legally enforceable transaction between him and the accused, in respect of amount of Rs. 1,80,000/-, and consequently, complainant failed to prove and establish beyond reasonable doubt that there existed any legally enforceable debt / liability against the accused on the date of issuance of the cheque and the disputed cheque in question was issued towards legally (7) enforceable liability, partly or in whole, even after considering letter dated 21st July 2005 at Exhibit 29, and hence, the trial court has rightly acquitted the accused and no interference is called for in appellate jurisdiction. 11. In the circumstances, after scrutinizing and appreciating evidence, the view adopted by the learned trial court, while acquitting the accused, is a possible view and the same does not appear to be perverse and the reasoning given therefor by the learned trial court also apparently cannot be faulted with, and hence, no interference therein is called for, and therefore, 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. 13. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/5173ka