1 Cri.Appln.No.5061/2010 fmp IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5061 OF 2010 Professor Shri Bhagwat Dagadu Rajhans ... APPLICANT VERSUS Mukesh s/o Jijabrao Pawar ... RESPONDENT ..... Shri S.R. Dheple, Advocate for the applicant Shri N.B. Suryawanshi, Advocate for the respondent ..... CORAM : U.D. SALVI, J. DATED : 4th October, 2011. PER COURT : 1. Heard finally. Perused Record. 2. Leave is sought to prefer appeal against the judgment and order of acquittal of the respondent/ accused, passed by 5th Judicial Magistrate, First Class, Jalgaon, acquitting the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, in Summary Criminal Case No.1787/2008, on 4.5.2010. 3. It was the grievance of the applicant/ complainant Professor Shri Bhagwant Rajhans that he had given books 2 Cri.Appln.No.5061/2010 fmp authored by him to the respondent/ accused for putting them on sale in his medical shop opposite Nutan Maratha College, Jalgaon; and a cheque of Rs.7000/- issued by the respondent/ accused for making the payment of the price of the books given for sale was dishonoured for want of sufficient funds in the Account of the respondent/ accused with Akola Urban Cooperative Bank Ltd., Akola. The complainant examined himself, and also examined P.W.2 Dilipsingh Patil, Branch Manager, Extension Counter, Nutan Maratha College of Jalgaon District Central Cooperative Bank and P.W.3 Uday Thatte, Senior Assistant, Akola Urban Cooperative Bank. The respondent/ accused, in his examination under Section 313 of the Criminal Procedure Code, revealed that, the cheque issued was given for making the payment of the publication charges of the advertisement of his establishment in the book authored by the complainant and the cheque was returned dishonoured as the complainant had not issued any receipt or bill and no advertisement was published as promised. 4. There is no controversy over the dishonour of the cheque in question and non payment of the amount of the said cheque. Controversy veers around the issue of the legally enforceable liability of the respondent/ accused as alleged by the complainant. It was, therefore, necessary for the complainant to have shown the fact of giving the books for sale to the respondent/ 3 Cri.Appln.No.5061/2010 fmp accused as alleged in his evidence. However, cross-examination reveals the emptiness of this allegation inasmuch as the complainant admitted that he has no evidence to show that he had authored the school books and given them to the respondent/ accused for sale in his shop. His examination-in-chief merely reveals that the respondent/ accused was conducting a medical shop and there is no whisper about sale of school books in his shop in the affidavit-in-chief (Exhibit 19). If such evidence is read in context with the statement of the respondent/ accused (Exhibit 31), the defence of the accused seems to be probable. 5. Learned trial Court was, therefore, right in acquitting the respondent/ accused. Leave is, therefore, refused. Criminal application No.5061/2010 is finally disposed off. ( U.D. SALVI, J. ) fmp/cri5061.10