1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1193 OF 2009 Milind s/o Suresh Fade .. APPLICANT VERSUS Anil s/o Shivdas Raje .. RESPONDENT Shri A.G. Talhar, Advocate for the applicant. ===== CORAM : R. M. BORDE, J. DATE : 24 th June, 2009. PER COURT : 1- This is an application raising exception to the order of acquittal recorded in SCC No. 3984/05 by the Judicial Magistrate, First Class, Jalgaon on 7-2-2009 whereby the accused / respondent herein is acquitted of the charge in respect of commission of offence punishable under section 138 of the Negotiable Instruments Act. 2- Complainant comes to the court with contention that the complainant and the accused were keeping friendly relations. An amount of Rs.50,000/- was initially handed over to the accused in the year 2004 and as a security cheque for the said 2 amount bearing date 1-4-2004 was issued. Complainant, however, on request of the accused did not tender the cheque for realisation with the bank. It is further contention of the complainant that on 13-4-2005 on request of the accused an amount of Rs. 2,50,000/- was tendered. Writing to that effect has been recorded on a stamp paper duly signed by the parties. Accused had issued a cheque on 13-6-2005 for repayment of amount of Rs.2,50,000/- advanced by the complainant. However, on presentation of cheque with the bank, the same was returned with endorsement that “funds are not sufficient”. Thus, complainant after issuing notice to the accused lodged prosecution under section 138 of the Negotiable Instruments Act. 3- Accused appeared and raised defence denying the alleged transaction. Defence of the accused is that there is no legally enforceable liability subsisting between the parties. So far as the bond alleged to have been executed by the parties is concerned, accused has contended that a blank cheque alongwith a stamp signed by the accused was given to the complainant while entering into earlier transaction in the year 2004. Blank stamp paper as well as the cheque has been misutilised by the accused. Contention raised by the defence appears to be corroborated from the fact that the stamp paper which has been utilised for executing bond has been purchased on 15-7-2004, whereas bond is actually redused into writing on 13-4-2005. There is also unreasonable gap between the last line of typed script and the signatures of the parties which is also a factor taken into account by the trial court while appreciating the document. Apart from this aspect, the bond which is stated to have been purchased in 3 the year 2004 has been utilised for writing receipt in respect of transaction for an amount of Rs.2,50,000/- which is stated to have taken place between the parties in the year 2004. It is also to be noted that the earlier transaction which according to the complainant also is of the month of April 2004 does find mention in the bond alleged to have been executed on 13-4-2005. Contention of the defence in these circumstances to the effect that the stamp paper handed over in the year 2004 alongwith blank cheque appears to have been mis-utilised, has some lining of truth. Apart from this aspect, the exact nature of the transaction has not been disclosed by the complainant although he stated that because of friendly relations the amount was advanced.` Reasons recorded by the learned trial Judge for recording the findings of acquittal appears to be reasonable and based on proper appreciation of evidence placed on record. Merely because some other view is also possible in the facts and circumstances of the case is not a ground for causing interference in an order of acquittal. There is no merit in the application. Application therefore stands rejected. Consequently, appeal also fails and stands rejected. ( R. M. BORDE, J.) dyb/office/criappln1193.09.odt