1 Cri.A.1851.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1851 OF 2010 Mantha Urban Co-Operative Bank Ltd., Mantha, Through Rameshwar S/o Raosaheb Gange,Age 34 Years, Occup.Service, R/o Mantha, Tq. Mantha, District : Jalna. ...APPLICANT. VERSUS 1. Govind S/o Rupala Chavan, Age : 42 years Occup: Agril., R/o Kirla, Tq. Mantha, District Jalna. 2. The State of Maharashtra, ...RESPONDENTS. ... Shri.G.C.Navandar, Advocate for Applicant. Shri.G.O.Wattamwar,Advocate holding for Shri.S.G.Rudrawar,Advocate for Resp.No.1. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 07TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by applicant- original complainant, seeking leave to file an appeal, challenging the Judgment and order dated 2 Cri.A.1851.10 05.02.2010, rendered by Learned Judicial Magistrate First Class, Mantha, Tq. Mantha District Jalna, in S.T.C.No. 2478 of 2008, thereby acquitting respondent-original accused for the offence punishable under section 138 of the Negotiable instruments Act. BRIEFLY STATED CASE OF THE APPLICANT IS THAT: 3. Applicant is Financial Institution and respondent - Original accused is borrower of the said bank, who obtained Housing loan of Rs.60,000/-(Rupees Sixty Thousand) from the applicant-Bank, on 30.09.2004 and executed documents in favour of the applicant - bank in that respect. However, respondent did not repay the said loan amount and committed default, in spite of repeated requests and remainders by the applicant in that respect. Ultimately, respondent gave cheque bearing No.061472 for Rs.60,445/- [Rs. Sixty Thousand Four Hundred Forty Five only] dated 04.01.2008 to the applicant-bank towards 3 Cri.A.1851.10 repayment of dues. Accordingly, applicant-bank presented the said cheque for encashment on 20th June 2008, but the same was dishonoured and returned with endorsement “insufficient Balance” along with Memo therewith. Hence, applicant bank issued notice on 21st June, 2008, which was received by respondent, but he failed to comply with the requisitions contained therein within the period of 15 days. Hence, applicant-bank filed complaint against respondent under section 138 of the Negotiable Instruments Act. 4. Applicant examined one witness, namely, Rameshwar Raosaheb Gange to substantiate its case, whereas respondent did not examine any witness, but put forth his defence by cross examining the applicant’s witness and also through his statement recorded under section 313 of the Code of Criminal Procedure. 5. At the outset, applicant has produced the cheque in question on record at Exh.15, Bank Memo 4 Cri.A.1851.10 thereof at Exh.16 and notice dated 21.06.2008 at Exh.17 and acknowledgment thereof showing receipt of notice by respondent at Exh.19. Accordingly, trial Court observed that the presumption under section 118, 139 of the Negotiable Instruments Act was raised against respondent. However, defence of the respondent is that, applicant-bank obtained blank cheque from him at the time of granting loan and misused the same and filed false complaint against respondent, as put forth by the respondent in the cross examination of the applicant’s witness and also during his statement recorded under section 313 of Code of Criminal Procedure. Accordingly, respondent rebutted the said presumption on the basis of preponderance of probability. 6. On the face of the said position, it was incumbent upon the applicant to prove and establish that the said cheque in question was issued by respondent for legally enforceable liability. In the said context, the learned trial 5 Cri.A.1851.10 Court observed in the impugned judgment that it has come on record that respondent visited applicant-bank and issued cheque dated 04.01.2008 of Rs.60,445/- towards repayment of the dues, but there was no balance in his account on the said date. It was also observed by the learned trial Court that it was incumbent upon the applicant- bank to verify whether there was balance in the respondent’s account and if answer was in affirmative, it could have transfered the amount by transfer slip from respondent’s account to loan account. Therefore, the applicant-bank was aware that there was no balance in the account of the respondent, still applicant-bank obtained cheque in question from the respondent towards repayment of arrears. It was further observed that although date of the said cheque was 04.01.2008, the applicant-bank presented the said cheque, after lapse of five months i.e. on 20.06.2008 and applicant-bank had not given any explanation in the complaint that, applicant-bank had kept the said cheque in its custody for a period of more 6 Cri.A.1851.10 than five months and consequently, also observed that applicant-bank deliberately presented the said cheque for realization when there was no balance in the respondent’s account and obtained the cheque return memo, and consequently, concluded that applicant bank utilized the pressurizing tactics against respondent and consequently, dismissed the complaint. Apparently, there is no flaw in the said observation made by the learned trial Court and reasoning adopted by the learned trial Court while dismissing the said complaint and acquitting the accused for the offence Punishable under section 138 of the Negotiable instruments Act. 7. Besides that, view adopted by the learned trial Court, after assessing and analyzing the evidence on record, is a probable view and same can not be construed as perverse, and hence, no interference therein, is warranted in the appellate jurisdiction. Therefore, present application seeking leave to file appeal bears no 7 Cri.A.1851.10 substance and same deserves to be rejected. 8. In the result, present application stands dismissed and leave to file appeal stands refused. 9. Record and Proceedings sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK