1 Appln.: 3655/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3655 OF 2010 Mr. Purshottam Nathoba Pawar .... Applicant Vs. Mr. Kishor Nathuram Chavan & Anr..... Respondents Mr. Prathamesh Gokhale, Advocate for applicant. Mr. P.A. Pol, APP for State. Coram : Smt. R.P.SondurBaldota, J. Date : 10th February, 2011 P.C. 1. This application is for leave to prefer appeal against the judgment of acquittal dated 21st May 2010, by which the trial court dismissed the complaint filed by the applicant under Section 138 Negotiable Instruments Act and acquitted respondent no.1. 2. It is the case of the applicant in his complaint that respondent no.1 needed financial assistance for extending his business and he had asked for hand loan of Rs.5,00,000/- from the applicant. The applicant had paid the amount to him. For repayment of loan, respondent no.1 had issued three cheques dated 15th June 2005 for the sums of Rs.2,00,000/-, 2,00,000/- and 1,00,000/-. The three cheques when presented for encashment, on 28th April 2005 returned dishonoured with a remark “funds insufficient”. Thereafter the 2 Appln.: 3655/2010 applicant served the statutory notice upon respondent no.1 and filed the complaint. 3. The defence of respondent no.1 was that he had not taken any amount whatsoever from the applicant and the applicant did not have the financial capacity to give loan of Rs.5,00,000/-. According to respondent no.1, the applicant was to secure loan for respondent no. 1 and the three cheques had been given by respondent no.1 to the applicant by way of security. 4. Perusal of the complaint shows that it contains a bald statement as regards the giving of hand loan to respondent no.1. The complaint does not mention when and how was the loan given. The three cheques dated 15th June 2005, which were allegedly given towards repayment of the loan were sought to be encashed within a short time i.e. on 28th July 2005. The trial court has noted that the applicant is not income-tax payee. The material on record indicated that the applicant does not have capacity to give loan of Rs. 5,00,000/-. Therefore the original transaction of loan was found to be doubtful by the trial court. It also considered the fact that all the three cheques in question bear the same date i.e. 15th June 2005. If the intention of respondent no.1 for issuing the cheques was of repayment of the loan, he could have given one cheque for the entire amount. There was no need for giving three cheques of the same date of different amounts. The court also noted the fact that the handwritten portion on all the cheques is different and ink with which the handwritten portion is written is different. In view of these 3 Appln.: 3655/2010 facts, the trial court held that the respondent had rebutted the presumption in favour of the applicant and there was no evidence produced by the applicant to show that the cheques had been issued towards legally enforceable debt. Perusal of the record and the judgment shows that the trial court has rightly considered all the aspects of the matter to dismiss the complaint and acquit respondent no.1. Hence, the application for leave to prefer appeal against the judgment of acquittal is rejected. (Smt. R.P.SondurBaldota, J)