1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 351 OF 2010 Dr. Babasaheb Ambedkar Nagari Saha. Bank , Aurangabad ...Petitioner VERSUS Mhammad Isaq s/o Abdul Rashid ...Respondent ..... Shri P.M.Gaikwad, advocate for the applicant ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 13 th August, 2010 PER COURT : 1 Heard Shri P.M.Gaikwad, advocate for the applicant. 2 This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the judgment and order of acquittal, dated 25.11.2009, passed by the 2 nd Judicial Magistrate, First Class, Aurangabad in S.C.C. No. 3319 of 2005, acquitting the respondent (original accused) for the offence under 2 Section 138 of the Negotiable Instruments Act, 1881. 3 I have perused the impugned judgment and order of acquittal dated 25.11.2009 as well as record and proceedings with the assistance of learned counsel for the applicant. 4 In short, the case of the complainant is that the complainant is a registered Cooperative Bank and the accused had availed loan of Rs.70,000/- from it for the purchase of furniture and agreed to repay the said loan amount by way of installments of Rs. 2,100/- per month. However, it is alleged that the accused did not repay the said loan installments regularly and committed the defaults. Hence, the complainant made repeated requests to the accused to repay the said amount. Thereafter, the accused issued a cheque No. 194101 for Rs.20,800/- to the complainant on 27.1.2005, drawn on United Western Bank, Aurangabad. The complainant presented the said cheque for encashment purpose. However, the same was dishonoured and returned unpaid with the endorsement, “funds insufficient”, as well as the complainant issued statutory notice on 30.3.2005 through the advocate by R.P.A.D. and U.P.C and demanded the cheque amount. However, the said R.P.A.D. notice was returned back. However, the notice issued under U.P.C. was 3 received by the accused, but the accused did not comply with the requisitions contained therein. 5 Hence, after completing the necessary formalities, the complainant filed the complaint before the learned Judicial Magistrate, First Class, Aurangabad under Section 138 of the Negotiable Instruments Act, 1881. Accordingly, process was issued against the accused on 7.4.2006. The accused appeared therein and pleaded not guilty and claimed to be tried. Hence, the complainant filed the affidavit of evidence of the authorised officer, namely Rahul Onkar Kotkar and adduced the oral evidence as well as produced the documentary evidence; whereas the accused neither examined himself nor examined any defence witness, but putforth his defence through cross-examination of the complainant and also through his statement recorded under Section 313 of the Code of Criminal Procedure. 6 After assessing the evidence, learned trial Judge arrived at the conclusion that the accused is not guilty of the charge levelled against him and acquitted him by judgment and order dated 25.11.2009. Being aggrieved and dissatisfied by the said judgment and order, the applicant (original complainant) has preferred the 4 present application seeking leave to file appeal against the same. 7 Although, on the date of issuance of cheque, the liability in the loan account of the accused was about Rs.27,100/- plus interest, the accused allegedly issued the cheque for the amount of Rs. 20,800/-. However, in the said context, there is no averment in the complaint of the complainant that the said cheque was issued by the accused towards the part payment of the loan amount and interest, nor it is stated so in the affidavit of evidence of the complainant’s witness specifically. Moreover, the complainant has produced the extract of loan account of the accused at Exh.40, but it does not bear the signature of the concerned authority in respect of the correctness in the entries mentioned therein, nor it bears the necessary endorsement as required under Section 4 of the Bankers Books of Evidence Act. 8 Moreover, the cheque in question Exh.24 discloses that there is a rubber stamp of the complainant/Bank in front of column “Pay”. Hence, learned trial Judge observed that cheque seems to have been issued in the name of the complainant by using the rubber stamp of the complainant and not in the hand writing and suggestion was given that blank cheque was issued by the accused, but same 5 was denied by the complainant, and therefore, possibility of issuance of blank cheque by the accused to the complainant at the time of grant of loan towards security of the said loan and misuse thereof by the complainant/Bank cannot be ruled out. 9 Learned trial court also observed that considering the probable defence raised by the accused, the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881. Moreover, it is also observed that probable defence is proved and that possibility cannot be ruled out that the complainant/Bank has obtained blank cheques as security towards the repayment of loan amount and misused those cheques by imposing stamp of the complainant/Bank thereon. 10 Considering the afore said infirmities, lacunae and deformities in the complainant’s case and also considering the evidence on record, while acquitting the accused, the view adopted by the learned trial Judge is a possible view to be adopted and no perversity is found therein, as well as reasoning given therefor also cannot be faulted with. Hence, present application bears no substance and same is devoid of any substance and same deserves to be rejected. 6 11 In the result, present application being sans merit stands dismissed and leave to file appeal stands refused. R. and Ps. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap351.10