1 criap867.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 867 OF 2011 Anand Urban Cooperative Credit Society, Shivaneri, Ulkanagari, Garkheda Area, Aurangabad, through its Manager Shri Sudhir Applicant/orig. Kishanrao Suste. complainant. versus Shri Abhay s/o Narayan Respondent/ Dhamangaonkar, orig.accused ------- Ms. M.G. Purnapattre, Advocate, for the applicant. Coram : Shrihari P. Davare, J. Date : 11.03.2011 P. C. 01. Heard Ms. Purnapattre, learned Advocate, for the applicant. 2. This is an application preferred by the original complainant, seeking leave to file appeal, challenging the judgment and order dated 27.12.2000 rendered by the learned Judicial Magistrate, First Class, 11th Court, Aurangabad, in S.C.C. No.4517 of 2009, thereby acquitting the present 2 criap867.11 respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 03. The factual matrix of the matter is as follows: The complainant is the credit cooperative society and the accused allegedly obtained loan of Rs.30,000/= from the said society and it is alleged that accused agreed to repay the said loan amount as per the terms of agreement. It is also alleged that the accused issued cheque bearing No.020181 dated 9.7.2009 for Rs.29,866/=, drawn on Adarsha Mahila Nagari Sahakari Bank Ltd., Cidco Branch, Aurangabad, in favour of the complainant for repayment of the amount due towards the said loan. The complainant presented the said cheque for encashment, but same was dishonour and returned on 10.7.2009 with endorsement "Funds Insufficient". Hence, the complainant sent a notice to the accused on 17.7.2009, by Registered Post A.D. and also Under Certificate of Posting, which were served on the accused on or about 25.7.2009. However, in spite of service of notice, accused neither replied the same nor complied with requisitions contained therein, and hence, the complainant filed complaint against accused under Section 138 of the Negotiable Instruments Act. The accused appeared therein and his plea was recorded and he pleaded not guilty to the charge levelled against him and claimed to be tried. 3 criap867.11 04. I have perused the impugned judgment. The complainant-credit society, to substantiate its case, examined in all two witnesses, namely, P.W. 1 Sudhir Kisanrao Suste (Exh.13) and P.W.2 Satish Damodhar Dahihande (Exh.27), and also produced the cheque in question at Exh. 16, Bank Memo at Exh. 17, copy of the notice at Exh.18, postal receipt of R.P.A.D. at Ex.19, postal receipt of U.P.C. at Exh.20, postal acknowledgment at Exh.21, loan application at Exh. 28 and Account extract at Exh.29. 05. The accused cross examined the complainant's witnesses, as well as examined himself before the court and his statement under Section 313 of the Code of Criminal Procedure was recorded. Accordingly, the accused put forth his specific defence that he had not taken any loan from the complainant society, but he had taken loan from one Lok Vikas Nagari Sahakari Pat Sanstha Maryadit and he had repaid it. Moreover, Lok Vikas Nagari Sahakari Pat Sanstha Maryadit had obtained 5 signed blank cheques from him, while advancing loan to him and complainant misused the cheque in question 06. There is no dispute that considering the oral evidence of the complainant's witnesses and documentary evidence in the form of cheque in question (Exh.16), Bank Memo (Exh.17), postal receipt of R.P.A.D (Exh.19), postal receipt of U.P.C. (Exh. 4 criap867.11 2) and the postal acknowledgment (Exh.21), initial presumption under Sections 118 and 139 of the Negotiable Instruments Act, is in favour of the complainant that the cheque in question was issued by the accused to the complainant towards discharge of the liability/debt. However, the said presumption is rebuttable and the accused has cross examined the complainant's witnesses, as well as examined himself and also put forth his case through statement under Section 313 of the Cr.P.C. 07. Considering specific defence of the accused as mentioned hereinabove,it is apparent that he has probabalized his defence on preponderance of probabilities. Since it is the specific case of the accused that he had obtained loan from Lok Vikas Nagari Sahakari Pat Sanstha Maryadit and he has repaid the same, and the complainant in the present case is Anand Urban Cooperative Credit Society, and in the said context, trial judge observed that it reveals from the printed loan application form that the same pertains to one Lok Vikas Nagari Sahakari Pat Sanstha Maryadit and it only bears rubber stamp of the complainant credit society and most of its columns, such as, loan amount, rate of interest, account number of the member of the society and the period of loan, are blank, and there is no pleading and proof put forth by the complainant that previously, name of the complainant credit society was Lok Vikas Nagari Sahakari Pat Sanstha Maryadit and it was changed as Anand Urban Credit Cooperative Society. 5 criap867.11 08. In the said context, it is also material to note that the evidence of PW-2 Satish Dahihande, which is in the form of affidavit filed on 28.9.2010, discloses that he is working in the complainant credit society since last six months, i.e. from March 2010, and he further stated that he was present when the accused filled in the loan application form. However, it is pertinent to note that the said witness was working with the complainant credit society since last six months only, i.e. from March 2010, whereas the loan application form is dated 1.8.2006 and, therefore, the question arises how he was present at the time the accused filled in the loan application form on 1.8.2006, and hence, it is apparent that evidence of PW-2 is suspicious. 09. As stated hereinabove, it is explicitly clear that the accused has probabalized his defence, and therefore, the burden shifts upon the complainant to prove and establish beyond reasonable doubt, that there existed legally recoverable debt from the accused. However, after assessing and analyzing the evidence before it, the learned trial judge observed that the complainant failed to prove and establish that the accused issued the cheque in question in favour of the complainant towards legally enforceable liability and also failed to establish the relation between the documents filed by it on record, with the alleged transaction, and even the pleading and evidence of the complainant is silent on the point as to when the accused 6 criap867.11 took loan from the complainant, and recorded his finding that the complainant has failed to prove and establish that the cheque in question was issued by the accused in favour of the complainant towards legally enforceable debt, and the said view adopted by the learned trial judge is a possible view to be adopted, after considering the evidence led before the trial court and same does not appear to be perverse. 10. Moreover, there does not appear any flaw in the reasoning adopted by the trial court, while acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, and same also cannot be faulted with, and therefore, present application bears no substance and hence, same deserves to be rejected. 11. In the result, present application stands rejected. Consequently, leave to file appeal is refused, and present application stands disposed of, accordingly. pnd/criap867.11 (Shrihari P. Davare, J.)