1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2405/2010 Shaikh Zakir Hussain Applicant V E R S U S Syed Nadim Syed Yusuf. Respondent. Shri S.J. Gaike, Advocate for applicant. CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST JULY, 2010. PER COURT : 1. This is an application, preferred by the applicant, seeking leave to file appeal against the judgment and order of acquittal dated 21.04.2010, passed by learned Judicial Magistrate F.C. Court No.6, Aurangabad in SCC No.3299/2009, acquitting the respondent (original accused) under section 138 of Negotiable Instruments Act. 2. I have perused the impugned judgment dated 21.4.2004 with the assistance of learned counsel for applicant. It is observed in the said judgment that complainant in his cross examination specifically admitted that 2 he could not say on which exact date, he has advanced an amount of Rs. 50,000/- to the accused. It is also observed that except ocular evidence of the complainant, there is no evidence on record to show that the complainant has advanced Rs.50,000/- to the accused. It is further observed that complainant has admitted that the said transaction has not been reduced into writing and when the transaction has taken place, none was present. 3. Admittedly, accused examined himself, although he neither examined any witness nor filed any document. However, it is observed in the said judgment that once accused has come with the specific case that he had not taken hand loan from the complainant, the complainant was obliged to prove beyond reasonable doubt, that he has advanced said amount to the accused. In this case, transaction itself is doubtful and therefore, the complainant failed to prove existence of legally enforceable debt against accused and consequently, learned trial judge acquitted the accused for the offence punishable under section 138 of Negotiable Instruments Act. 4. Apparently, view taken by the learned trial judge is a possible view to be taken after scrutinizing and appreciating the evidence and no 3 perversity therein is found and hence no interference therein is warranted under the Appellate jurisdiction. 5. In the result, present application seeking leave to file appeal against said judgment and order of acquittal dated 21.4.2010 bears no substance and same is devoid of merits and therefore, same stands rejected. Leave to file appeal stands refused. ( SHRIHARI P. DAVARE, J. ) ..... AAA/2405.10