1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 858 OF 2009 IN CRIMINAL APPEAL STAMP NO. 180 OF 2009 Pandurang s/o Bhaskarrao Wattamwar ..Applicant (Original complainant) VERSUS Balaji s/o Devidasrao Shahane ..Respondent (Original accused) ..... Shri S.G.Chapalogaonkar, advocate for the applicant Shri Ram Deshpande, A.P.P. for respondnt ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 5th October, 2009 PER COURT : 1 Perused. Heard learned respective counsel for the parties. 2 2 By the present application, the applicant has sought leave to file the accompanying Criminal Appeal challenging the judgment and order of acquittal rendered by the learned Additional Sessions Judge, Parbhani in Criminal Appeal No. 39 of 2007 on 29.12.2008. 3 The applicant/appellant (original complainant) had filed Summary Criminal Case No. 1432 of 2004 against the respondent (original accused) for dishonour of cheque of Rs.3,00,000/- under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the N.I. Act”). The respondent/accused was convicted for the offence punishable under Section 138 of the N.I. Act in the said case and was sentenced to suffer imprisonment for one month and to pay fine of Rs.1,500/- and was also directed to pay the compensation of Rs.3,00,000/- to the complainant, namely, Pandurang Bhaskarrao Wattamrao by way of judgment and order dated 17.3.2007. 4 Being aggrieved and dissatisfied by the said judgment and order, the original accused preferred above referred Criminal Appeal No. 39 of 2007 before the Additional Sessions Judge, Parbhani, wherein the original accused came to be acquitted by allowing the said appeal by way of judgment and order dated 3 29.12.2008 rendered by the learned Additional Sessions Judge, Parbhani as afore said. The complainant/appellant has preferred the present appeal against the said judgment and order of acquittal assailing the lower Appellate Court’s judgment and order dated 29.12.2008. 5 It was argued that the amount of Rs.3,00,000/- allegedly given by the complainant to the original accused by way of hand loan was not reflected in his income tax return. The learned counsel for the appellant/applicant relied upon the ratio laid down and observations made in the case reported at 2006 (6) Bom.C.R.653 [Deelip Apte vs Nilesh P.Salgaonkar and anr.], as under :- “(F) Negotiable Instruments Act, 1881, Secs. 138 & 118(b) – Dishonour of cheque – Advance loan – Contention, amount not shown in income tax return by complainant – Held, do not think that every person who gives friendly loan does in all case shown such loan in their income tax return, more so if they are payable on demand for a short time. JMFC entirely lost sight of several presumptions which law has enacted in favour of complainant “ In the said context, learned counsel for the respondent relied upon the ratio laid down in the Ruling reported at 2006 All MR 4 (Cri) 3203 [Vasudeo Ramchand Ahuja vs Vilas Shripati Kamble and Anr.], as under :- “ Negotiable Instruments Act (1881), S.138 – Existing liability – Complainant alleging that accused had taken a friendly loan of Rs. 5,00,000/- from him – Cheque issued in repayment was dishonoured – Complainant unable to produce documents to show that there was enforceable debt against accused – Said amount admittedly was not shown in Income-Tax return and also did not reflect in the books of account – Held Trial Court was justified in upholding defence of accused that there was no legally enforceable debt on date of presentation of cheque and in dismissing the complaint.” 6 It was also canvassed that no date of alleged hand loan has been specified in the complaint. Moreover, it is also submitted that the accused did not lead any evidence and did not enter into the witness box and did not explain how the cheque in question came into the hands of the complainant. 7 Apparently there are allegations and counter allegations, but it appears that there is debatable law point and hence leave is required to be granted to file the accompanying appeal in the interest of justice. 8 In the result, leave granted to the applicant/appellant 5 as prayed for to file the accompanying Criminal Appeal and the accompanying Criminal Appeal be registered and numbered accordingly. (SHRIHARI P. DAVARE, J.) dbm/crap858.09