-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2212 OF 2008 IN CRI. APPEAL NO. OF 2008 Shri Valchand Gulabchand Bora .. Applicant/Appellant. V/s. Shri Chandrakant Pandurang Shingade and another .. Respondents. --- WITH CRIMINAL APPLICATION NO. 2213 OF 2008 IN CRI. APPEAL NO. OF 2008 Shri Valchand Gulabchand Bora .. Applicant/Appellant. V/s. Shri Chandrakant Pandurang Shingade and another .. Respondents. --- Mr.V.B. Tapkir for the Applicant. Mr. Rajiv Patil i/by Sachin S. Punde for the Respondent No.1. Shri Y.M. Nakhawa APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 13th JANUARY, 2009. DATED : 13th JANUARY, 2009. DATED : 13th JANUARY, 2009. P.C.: P.C.: P.C.: . Heard Mr. Tapkir for the applicant and Mr. Rajiv Patil for the respondent no.1 and Mr. Nakhawa, APP -: 2 :- for the State. 2. Parties are the same in both the criminal applications and issue involved in both the applications is common. Hence, both the applications are being disposed of by this common order. 3. The applicant is the original complainant who filed two criminal cases, namely, criminal case nos.625/ 2007 and 623/ 2007 before the learned JMFC, Baramati against the respondent no.1, the original accused, under section 138 of the Negotiable Instruments Act. It was the case of the applicant that he had friendly relations with the respondent no.1. The respondent no.1 procured a petrol pump at village Supe in the year 2005 and he was in need of large capital for the said business. However, as respondent no.1 was not having required capital, he gave a proposal to the applicant to start the said business in partnership. At that time the applicant had just sold his agricultural land and was settled in Baramati city. It was decided that the applicant will invest Rs.25 lakhs as his share and accordingly, in the month of June/July, 2006 the applicant/complainant gave a cash amount of Rs. 25 lakhs to the respondent no.1. However, subsequently, the respondent no.1 told the applicant that petrol pump company is not ready to allow -: 3 :- partnership for the said business. Thereafter the applicant demanded the amount back from the respondent no.1. The respondent no.1 accordingly issued two cheques dated 15.11.2006, one for an amount of Rs. 15,30,000/- and the other one is for Rs.9,55,000/- in favour of the applicant. It is further the case of the applicant that on 15.11.2006 the respondent no.1 requested him not to deposit the said cheques in the bank as his loan proposal was not sanctioned and again the respondent no.1 demanded Rs. 2 lakhs to construct petrol pump service station. The applicant on the request of the respondent no.1 further gave an amount of Rs. 2 lakhs and on the same day the respondent no. 1 issued a cheque of Rs. 2 lakhs in favour of the applicant. It is further the case of the applicant that on 20.11.2006 the respondent no.1 again demanded an amount of Rs. 1,50,000/- from the applicant /complainant. It was paid in cash and again the respondent no.1 had issued a cheque in favour of the applicant for this amount of Rs. 1,50,000/- on 23.11.2006. 4. All the four cheques were deposited by the applicant in a bank but the same were returned back with the remark "funds insufficient". Thereafter, the applicant issued a legal notice to the respondent no.1 and filed two complaints. The subject matter of criminal -: 4 :- application No. 2212/2008 is the criminal case No. 625/2007 which was filed in respect of the dishonoured / bounced cheques dated 15.11.2006 for the amount of Rs. 24, 85,000/- (i.e.Rs.15,30,000/- + Rs.09,55,000/- respectively). 5. The subject matter of criminal application no. 2213/2008 is the criminal case no. 623/2007 which was filed by the applicant in respect of the dishonoured cheques dated 15.11.2006 and 20.11.2006 for the amount of Rs. 2,00,000/- and Rs. 1,50,000/- respectively. 6. The learned Magistrate after hearing both the sides held that the applicant complainant failed to prove that he gave an amount of Rs. 28,35,000/- to the respondent no.1 and also an amount of Rs.3,50,000/- to the respondent no.1 to start business of petrol pump outlet. The learned Magistrate also held that the cheques, allegedly issued, were not issued to discharge any legally enforceable debt or liability and consequently both the complaints of the complainant were dismissed by the learned Magistrate. 7. The applicant alleged that huge amount of Rs. 28,35,000/- was given to the respondent no.1 in cash. The applicant has not come forward with a specific date -: 5 :- on which this amount in cash was given to the respondent no.1. It is the case of the applicant that before entering into a partnership firm this loan amount was already parted with by him to the respondent no.1. The learned Magistrate considered this special circumstances and concluded that this conduct of the applicant is highly improbable as no prudent man will advanced such huge amount without there being any writing and that no person is expected to keep such huge amount in cash. It is not understood as to why the applicant again gave an amount of Rs. 3,50,000/- to the respondent though the applicant had come to know that the respondent no.1 had not paid earlier amount of Rs. 28,35,000/-. Taking overall circumstances into consideration, the learned Magistrate held that the applicant failed to prove that he paid the amount of Rs. 28,35,000/- to the respondent no.1. 8. Regarding financial capacity of the applicant to give such huge amount to the respondent is also answered in the negative by the learned Magistrate. The learned Magistrate observed that the applicant himself has obtained loan for his house and still he is repaying that loan amount. Therefore, if a person who is having such a huge amount will not obtain loan for purchase of his house. The applicant has not filed any income tax -: 6 :- return. The applicant though produced the account statements at Exhs. 31,32, and 33; however, those account statements do not show that the applicant was having such huge amount in his account. 9. It is contended by the learned counsel for the respondent no.1 that the applicant is carrying illegal business of money lending. The contention of the respondent no.1 is corroborated by the fact that the applicant was chargesheeted for the offence under the Money Lending Act. 10. Taking overall view of the matter, the learned Magistrate concluded that the respondent no.1 succeeded in proving the case that he never took an amount of Rs.28,35,000/- from the applicant/ complainant and the alleged cheques were not issued to discharge any legally enforceable debt or liability. 11. View taken by the learned Magistrate is a possible view. This view cannot be substituted by another possible view. When two views are possible, the view favourable to the accused is to be accepted. Therefore, I do not find any merit in the applications for leave to appeal. Both the applications are accordingly dismissed. -: 7 :- (R.V.MORE,J.)