1 crap104.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 104 OF 2011 Santosh s/o Chandrakant Gangpurkar ...Applicant (Orig. complainant) VERSUS Ashok s/o Ramrao Giri and anr. ...Respondent ..... Shri V.C.Patil, advocate holding for Shri U.B.Bondar, advocate for applicant Shri V.D.Sonawane, advocate for respondent no.1 Shri V.G.Shelke, A.P.P. for respondent no.2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 4 th May, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 This is an application preferred by the applicant (original complainant) seeking leave to file appeal, challenging the judgment 2 crap104.11 and order, dated 8.11.2010, rendered by the learned 12 th Judicial Magistrate, First Class, Aurangabad in S.C.C. No. 2444 of 2009, thereby acquitting the respondent no.1 (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 I have perused the contents of the impugned judgment and order, dated 8.11.2010 as well as Record and Proceedings with the assistance of the learned counsel for the parties. 4 Briefly stated, the case of the prosecution is that the complainant is carrying out the business of sale of drugs and medicine and the complainant claims that there was cordial relations between him and the accused and the accused used to visit his shop frequently. It is also alleged that the accused requested to the complainant to give hand loan of Rs.5,00,000/- to him to purchase a flat in the month of May, 2008 and assured that he would repay the said amount within the period of 3-4 months after release of Bank loan. Accordingly, the complainant gave Rs.5,00,000/- to the accused by way of hand loan in the month of May, 2008. After the lapse of four months, the complainant demanded the said amount from the accused. Thereupon, the accused gave the complainant a cheque bearing No. 280354, dated 5.9.2008, for Rs.2,00,000/- 3 crap104.11 drawn on Axis Bank, Adalat Road Branch, Aurangabad and also gave another cheque bearing No. 280355, dated 20.12.2008, for Rs. 3,00,000/-. Out of the said two cheques, the complainant on 20.2.2009 deposited the cheque bearing No.280354, for Rs. 2,00,000/- in Devgiri Nagari Sahakari Bank, Jawahar Colony Branch, Aurangabad in his account for encashment purpose. However, the said cheque was dishonoured and returned unpaid with the endorsement, “account closed”. Hence, the complainant gave legal notice to the accused through advocate on 18.3.2009 by Registered Post A.D. as well as Under Certificate of Posting. However, it is alleged by the complainant that the said notice was received by the accused, but in spite of that he did not pay the cheque amount to the complainant within the stipulated period therein. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act. 5 The accused appeared therein and contested the same. To substantiate the case of the complainant, he examined himself and also produced the disputed cheque in question for Rs.2,00,000/- at Exh.13, and the cheque return memo at Exh.14, copy of demand notices at Exhs. 21 and 22 and reply to the said notice, dated 30.3.2009 at Exh.23, R.P.A.D. Receipts at Exhs 15 and 16 and it's acknowledgment at Exh.17 and receipt of Under Certificate of 4 crap104.11 Posting at Exhs. 18 and 19 and the registered postal envelope at Exh.20; whereas the accused examined one witness, namely Dilip Janardhan Shinde, Bank Manager in his defence. 6 Considering the oral evidence of the complainant and the aforesaid exhibits, it is apparent that initial presumption is in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act that the accused issued the disputed cheque in question for Rs.2,00,000/- to the complainant towards discharge of the liability partly or in whole. However, the said presumption is rebuttable by the accused and the standard of proof required is on preponderance of probability. Hence, the question arises whether the accused has rebutted the said presumption under Sections 118 and 139 of the Negotiable Instruments Act on preponderance of probability. In the said context, it is necessary to consider the defence of the accused that the accused issued five cheques to the complainant and the accused produced the said five cheques on record as Article 'A', and the accused also stated that when his son was sick, he purchased medicine on credit from the complainant and the disputed cheque in question was issued towards the same, and stated that the complainant has filed the false case against him. The accused put forth his defence through the cross-examination of the complainant and also examined the Bank Manager Shri Dilip 5 crap104.11 Janardhan Shinde and also put forth the said defence through his statement recorded under Section 313 of the Code of Criminal Procedure. 7 Considering the position that the accused has produced five cheques as Article 'A' through his witness, namely Dilip Shinde, Bank Manager, as well as considering the cross-examination of the complainant and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, apparently it appears that the accused has discharged the said burden on preponderance of probability and rebutted the presumption raised against him as afore said. 8 Hence, it was incumbent upon the complainant, to prove and establish beyond reasonable doubt, that there existed legally enforceable debt and the disputed cheque in question was issued by the accused towards the discharge of the legally enforceable debt partly or in whole. However, in the said context, it is pertinent to note that the complainant admitted in his cross-examination that he has accepted other cheques from the accused besides the disputed cheque in question, as well as he admitted that at the time of giving hand loan of Rs.5,00,000/- to the accused, he did not obtain any bond from him. It is pertinent to note that the complainant admitted 6 crap104.11 in his cross-examination that he did not possess amount of Rs. 5,00,000/- and he possessed only Rs.87,000/- and he borrowed balance amount from his wife, father and maternal uncle and handed over the same to the accused, with whom he got introduced very recently in the year 2006-07. It is also significant to note that the complainant did not make inquiry with the accused as to from whom the accused was to purchase the flat and what was the price of the said flat. Further it also admitted that he filed income tax return about one month back to create evidence, after filing the present complaint. Moreover, he admitted that he did not possess any documentary evidence to show that he handed over the amount of Rs.5,00,000/- to the accused. Hence, considering the afore said admissions of the complainant, suspicion is created whether the complainant really handed over the amount of Rs.5,00,000/- to the accused. Moreover, it is also not digestible that the complainant gave Rs.,5,00,000/- to the accused after borrowing money from his relative, although he did not possess the entire amount, and more particularly, when the accused was introduced to the complainant very recently i.e. in the year 2006-07. 9 In the circumstances, the learned Trial Court has rightly observed that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt 7 crap104.11 against the accused, and the accused issued disputed cheque in question towards the legally enforceable debt/liability, and rightly dismissed the complaint and acquitted the accused and there is no flaw in the reasoning given therefor, and the view adopted by the learned Trial Court by acquitting the accused, after assessing and scrutinizing the evidence on record, is a possible view and same does not appear to be perverse and the reasoning given therefor apparently cannot be faulted with and present application deserves to be rejected. 10 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap104.11