(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 71 of 2010 Dadasaheb Waman Vishnu Shinkar Nagari Sahakari Path Pedi Marayadit, Deopur, Dhule, through its Recovery Officer, Shri Vinod Bhatu Parolekar, Age : 43 years, Occupation : Service, .. Applicant R/o. Deopur, Dhule, (Original Taluka and District : Dhule. complainant) versus Pitambar Bhika Chavan, Age : 67 years, Occupation : Driver, R/o. Moglai, Near old Naka, Dhule, .. Respondent Taluka and District : Dhule. (Original accused) ....................... Mr. D.S. Bagul, Advocate, for the applicant. Mr. R.S. Shinde, Advocate, holding for Mr. N.L. Chaudhari, Advocate, for the respondent. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 28TH JUNE 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 dated 15-10-2009, rendered by the learned Judicial Magistrate (First Class), Dhule, in S.T.C.C. No. 1303/2007, 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 15-10-2009, 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 the complainant is a Patpedhi and the accused obtained loan of Rs. 2,00,000/- for business purpose from the complainant on (3) 13-10-2003, and executed deed of mortgage in favour of the complainant for Rs. 1,00,000/- in October 2003. It is alleged that the accused issued cheque bearing No. 5011291, of Rs. 3,17,000/- to the complainant / Patpedhi towards repayment of the said loan amount. Accordingly, complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid with endorsement, "insufficient funds". Hence, the complainant gave demand notice to the accused on 16-2-2007. The said notice was returned unclaimed. The accused did not make payment of the cheque amount, and hence the complainant filed complaint against the accused. 6. To substantiate the case of the complainant, he filed affidavit of Vinod Parolekar, authorized representative of the complainant / Patpedhi, in lieu of examination in chief and produced documents, such as, disputed cheque in question, at Exhibit 18; Bank Return Memo, Exhibits 19 and 20, respectively; Postal Receipt, Exhibit 21; Postal Acknowledgment, Exhibit 22; Account Extract, Exhibit 38; copy of notice dated 16-2-2007, Exhibit 41; and Resolution dated 7-4-2007, Exhibit 42. 7. Considering the oral and documentary evidence adduced and produced by the complainant, initial presumption (4) has been raised in favour of the complainant under Sections 118(a) and 139 of Negotiable Instruments Act, that the disputed cheque in question was issued by the accused to the complainant towards discharge of liability in part or whole. However, the said presumption is rebuttable and the standard of proof required therefor is on preponderance of probability. Hence, the question arises, whether the accused has discharged the said burden and rebutted the presumption. 8. In the said context, the complainant was cross examined by the accused and the learned trial court has observed in the impugned judgment, that the documents produced by the accused were referred to the complainant during cross examination, and the complainant admitted that the number mentioned on counter slip of the cheque and the number of the disputed cheque in question are the same, and the said counter slip is having date 13-10-2003. Moreover, accused examined himself for his defence, as well as, put forth his defence through his statement under Section 313 of Cr.P.C. In short, defence of the accused is that the disputed cheque in question was issued to the complainant at the time of sanction of loan as a security on 13-10-2003, and the complainant misused the said cheque and filed a false complaint against him. Considering the cross examination of the complainant, and the evidence of accused, and (5) his statement under Section 313 of Cr.P.C., learned trial court made observation, that the accused created doubt about the transaction and accordingly, accused has probablised his defence on preponderance of probability, and apparently, there is no flaw in the said reasoning. 9. Since the accused has probablised his defence, as aforesaid, and rebutted the presumption, the burden shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability against the accused, and the disputed cheque in question was issued by the accused to the complainant towards discharge of the legally enforceable debt / liability. In the said context, the complainant produced account extract, but the learned trial court has observed that the complainant produced incomplete account extract Exhibit 38, and gave benefit of doubt to the accused, and apparently, there is no flaw in the reasoning given by the learned trial court in that respect. 10. Moreover, learned Counsel for the applicant has relied upon the judgment of Madras High Court in the case of Marothi Chits (P) Ltd., rep. by its Managing Director Vs. N.S. Ramakrishnan, reported at (2006(2) DCR 540). However, on perusal of the said judgment, it appears that the cheque in (6) question in the said case was issued towards the bid, but so is not the position in the instant case, and therefore, judicial pronouncement relied upon by the learned Counsel for the applicant is of no assistance to the case of the complainant. 11. Having comprehensive view of the matter, it appears that the learned trial court after scrutinizing and analyzing the evidence on record, has arrived to the conclusion of giving benefit of doubt to the accused and acquitted the accused, and apparently, there is no flaw in the said observations, and the said view adopted by the learned trial court is a possible view, and same does not appear to be perverse, and therefore, no interference therein is called for in appellate jurisdiction. Hence, present application which is without any substance and merits, 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/ka71