(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 4718 of 2010 Sanjay s/o. Vaijinath Gaikwad, Age : 38 years, Occupation : Business, .. Applicant R/o. Gul Market, Latur. (Original complainant) versus 1. Janardhan s/o. Kashinath Kumbhar, Age : Major, Occupation : Business, R/o. Meghraj Nagar, In front of Marwadi Smashanbhumi, Latur. .. Respondents (No.1 - Original 2. The State of Maharashtra. accused) ....................... Mr. R.P. Adgaonkar, Advocate, for the applicant. Mr. N.D. Kendre, Advocate, for respondent no.1. Mr. B.V. Wagh, Additional Public Prosecutor, for respondent no.2. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST JULY 2011 (2) 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 27th September 2010, rendered by the learned 3rd Judicial Magistrate (F.C.), Latur, in S.T.C. No. 4229/2006, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 3. I have perused the impugned judgment and order dated 27th September 2010, and also perused the Record & Proceedigs with the assistance of the learned Counsel for the parties. 4. It appears that the accused has raised the defence, that he has not received the amount of Rs. 4,71,000/- from the complainant. However, although the accused cross examined the complainant and examined himself, and recorded his statement under Section 313 of Cr.P.C., it appears that he has not probabalised his defence on preponderance of probability, and hence, matter requires re-consideration, and therefore, present (3) application seeking leave to file appeal is allowed, and leave to file appeal is granted, and the present Application be treated as Appeal. 5. Admit. 6. Adv. Mr. N.D. Kendre waives service of notice for respondent no.1, after admission, and learned APP Mr. B.V. Wagh waives service of notice for respondent no.2, after admission. 7. Respondent no.1 (original accused) to furnish same bail, but to execute fresh bond before Trial Court within a period of four weeks from today. 8. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka4718