1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.522 OF 2010 WITH CRIMINAL APPLICATION NO.521 OF 2010 Rajkumar Hiralal Dhotre ..APPLICANT -VERSUS- Dattatraya Murlidhar Vaidhya and another ..RESPONDENTS ......... Mr. B.S. Shinde, advocate for applicant. Mr. V. B. Munat, advocate for respondent no.1. Mrs. S.D. Shelke, A.P.P. for respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 2nd September, 2010. PER COURT : 1. Heard learned counsel and learned A.P.P. 2. There is delay of 7 days in filing the criminal appeal. The applicant is the original complainant. He alleges that the delay of 7 days was caused due to his intervening illness. He could not, therefore, immediately approach his Advocate for filing of the appeal. Considering the explanation given in the application, the delay stands condoned. The application is allowed. 3. Another application filed by the applicant is for leave to appeal under Section 378(4) of Criminal Procedure Code. On consideration of the submissions of the learned counsel and the 2 learned A.P.P., I find that acquittal of the respondent no.1 has been rendered in S.T.C. No.7518/2005 by the learned Judicial Magistrate (F.C.) for the offence under Section 138 of the Negotiable Instruments Act mainly for the reason that he failed to prove that he had enough resources available with him to advance an amount of Rs.1,00,000/- to the respondent no.1 by way of loan. It appears that the issuance of cheque by the respondent no.1 is not in dispute. The learned Magistrate observed that the applicant could not establish his ability to give amount shown under the disputed cheque (Exh.50) to the respondent no.1. The case of the applicant was that such amount was required by the respondent no.1 for expansion of his transportation business. The respondent no.1 did not reply the demand notice. The presumption available under the relevant provisions, more particularly, under Section 139 of the Negotiable Instruments Act, seems to have been improperly overlooked. 4. Considering these aspects, there is, prima facie, case made out for the purpose of allowing leave to appeal. The application is, therefore, disposed of. (V.R.KINGAONKAR) JUDGE gas/cri522.10