1 Cri.A.1361.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1361 OF 2010 Deogiri Nagri Sahakari Pat Sanstha Ltd., registered office at B-216,N-1 CIDCO, Aurangabad, through its authorized employee Mr. Manoj Jagannath Pasare, Age : 29 Years, Occup.: Service, R/o N-4 CIDCO, Aurangabad. ...APPLICANT. VERSUS Manisha Arunrao Wakle, Age : 30 Years, Occup.: Business, At. Post: Laxmi Colony, Prop. Sanskruti General Store, Taluka Gangapur, District Aurangabad. ...RESPONDENT. ... Mrs. Mayuri S. Gavhane,Advocate for Applicant. Mr. C.R.Thorat,Advocate for Respondent. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 10TH MARCH, 2011. PER COURT : 1. Heard Mrs. Mayuri S. Gavhane, learned counsel for applicant and Mr.C.R.Thorat, learned counsel for Respondent. 2. This is an application preferred by the applicant - Original complainant seeking leave to 2 Cri.A.1361.10 file appeal, challenging the Judgment and order dated 1st January, 2010, passed by learned Judicial Magistrate First Class - 1, Aurangabad, in Summary Criminal Case No. 5752 of 2007, thereby acquitting respondent - original accused for the offence punishable under section 138 of the Negotiable Instruments Act. FACTURAL MATRIX OF THE CASE IS AS FOLLOWS: 3. The Complainant is a credit Society registered under the Maharashtra Co-operative Credit Societies Act, and it deals with banking business under the name and style as “Devgiri Nagari Sahakari Pat Sanshta”, having its registered office at Aurangabad. Respondent - Original accused, namely, Manisha Wakale, availed loan of Rs.25,000/-(Rupees Twenty Five Thousand), from the complainant-Society, branch at Gangapur, on 14.10.2005, for the purpose of General Stores. It is alleged that, accused gave cheque No. 659370 for Rs.35,400/-(Rupees Thirty Five Thousand Four Hundred) on 05.06.2007, drawn on State Bank of Hyderabad, Branch Gangapur, District Aurangabad, 3 Cri.A.1361.10 towards repayment of outstanding amount in the loan account. According to the complainant, the said cheque, when presented for encashment, was dishonoured and returned unpaid along with memo with endorsement “referred to drawer”, on 12.07.2007. Hence, complainant gave legal notice to the accused through Advocate by “Registered Post A.D.” and “Under Certificate of Posting”, calling upon her to pay said amount within 15 days from the date of receipt thereof. However, accused failed to comply with the requisitions contained in the said notice, hence, the complainant filed complaint before Judicial Magistrate First Class, Aurangabad, under section 138 of the Negotiable Instruments Act. 4. Process came to be issued under section 138 of the Negotiable Instruments Act, and accused appeared and pleaded not guilty. The complainant adduced its oral evidence, as well as produced documentary evidence. Accused also examined herself and her statement was recorded under 4 Cri.A.1361.10 section 313 of the Code of Criminal Procedure. The defence of the accused is that there is no legally enforceable debt and she has not received any legal demand notice. 5. After considering rival pleadings and after assessing evidence on record adduced/produced by the parties, and also considering rival submissions advanced by the learned counsel for the parties, Trial Court acquitted the accused for the offence punishable under section 138 of the Negotiable instruments Act, by Judgment and order dated 1st January, 2010. 6. Being aggrieved and dissatisfied by the said Judgment and order of acquittal, original complainant has preferred present application seeking leave to file an appeal challenging the same. 7. Mr. Manoj Pasare, Recovery Officer of complainant-Society, himself adduced his oral 5 Cri.A.1361.10 evidence and produced cheque in question at Exhibit 23, Cheque Returned Memos at Exhibits 24 and 25 respectively, Loan Application Form at Exhibit 26, and the complainant also examined P.W.2 Bhagirath Chandrabhan Ahire. Advocate of the accused cross-examined the said complainant’s witnesses P.W.1 Mr. Manoj Pasare and P.W.2 Bhagirath Chandrabhan Ahire. Considering oral and documentary evidence of the complainant, there is no dispute that initial presumption in respect of cheque in question by accused under sections 118 and 139 of the Negotiable instruments Act is in favour of complainant. 8. However, respondent - accused also examined herself and raised the defence that while granting loan complainant obtained blank cheque in question and her signature thereon, drawn on the State Bank of Hyderabad, Branch Gangapur, towards security of the said loan, as well as complainant obtained her signatures on the printed blank agreement, Promissory Notes and other documents. 6 Cri.A.1361.10 She also stated that she did not receive the notice sent by the complainant, since it was sent on the incorrect address. She further stated that she repaid entire amount of the complainant and she is not liable to repay any legally enforceable debt to the complainant. Moreover, statement of the respondent - accused under section 313 of the Code of Criminal Procedure was recorded, wherein she categorically stated that she did not receive notice before filing of the complaint, from complainant. She further stated that complainant has filed false complaint against her. 9. Accordingly, considering cross examination of the complainant’s witnesses conducted by the counsel of the accused, as well as statement of the accused Under section 313 of the Code of Criminal Procedure, it is apparent that accused has rebutted said presumption in favour of the complainant, and hence burden was shifted upon the complainant to prove that the cheque in question was issued by the accused towards legally 7 Cri.A.1361.10 enforceable debt. 10. Hence, it was incumbent upon the complainant to prove and establish that the accused issued cheque in question towards legally enforceable debt beyond reasonable doubt. In the said context, complainant’s witness admitted in his cross examination that he has not filed statement of the account of the accused, on record. Accordingly, there is nothing on record to prove and establish that the amount of Rs.35,400/- (Rupees Thirty Five Thousand Four Hundred) was outstanding in the loan account of accused on 05.07.2007, since the cheque in question issued for the said amount is of said date. Moreover, accused has categorically stated in her examination-in-chief affidavit that she has repaid entire loan amount of the complainant, but there is no cross examination by the complainant in that respect. Thus, it is explicitly clear that complainant failed to prove and establish legally recoverable debt due from the accused, beyond reasonable doubt and also has not discharged the 8 Cri.A.1361.10 burden, which is shifted upon it, and therefore, trial Court rightly acquitted the accused of the offence punishable under section 138 of the Negotiable Instruments Act. 10. Besides that, view adopted by the learned trial Court, after assessing and analyzing the evidence before it, is a probable view and same does not appear to be perverse, and reasoning given therefor by the Trial Court, also can not be faulted with, and hence, no interference therein is warranted, in the appellate jurisdiction. 11. In the result, present application bears no substance, and therefore, same stands dismissed and leave to file appeal stands refused. 12. Record and Proceedings be sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK 9 Cri.A.1361.10