( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1492 OF 2009 WITH CRIMINAL APPLICATION NO. 1491 OF 2009 Ramdas s/o Eknathrao Phartade APPLICANT IN BOTH APPLICATIONS VERSUS Ravindra Gangadhar Pille RESPONDENTS IN and another. BOTH APPLICATIONS ..... Mr. Y.V. Kakade, advocate for the applicant. Mr. Rajendra Deshmukh, advocate for respondent No.1. Mrs. R.D. Reddy, APP for respondent No.2/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th August, 2009] PER COURT : 1. Heard. 2. These are the applications for condonation of delay and leave to appeal. ( 2 ) 3. The delay is of only six (6) days. The delay is insignificant and appears to be on account of reasons stated in the application. The delay is unintentional. I deem it proper to accept the explanation stated in the paragraphs No. 6 and 7 of the application. Hence, the delay is condoned. The criminal application No. 1492/2009 is allowed accordingly. 4. The applicant instituted a private complaint case bearing S.T.C. No. 5368/2006 for offence punishable under section 138 of the Negotiable Instruments Act. The case of the applicant was that he and the respondent No. 1 are inhabitants of the same locality and were having cordial relationship between them. He received retiral benefits after superannuation. The respondent No. 1 urged for loan required to carry out construction of the house property. Therefore, he lent Rs. 6,76,200/- to the respondent which the latter assured to repay after borrowing loan from any financial Institution. The respondent No. 1 did not keep words. ON demand for the repayment, the respondent No. 1 issued two (2) cheques, one for Rs. 3,75,000/- and another for Rs. 3,01,200/- ( 3 ) on 14-06-2006 and 28-06-2006, respectively, drawn on Ahmednagar District Central Cooperative Bank Limited, Branch Bhingar. The cheques were dishonoured due to insufficiency of funds in the account of the respondent No.1. Therefore, demand notice was issued on 03-07-2006 which was duly served on the respondent No.1. The notice was not complied with and as such, the private complaint case was instituted. The learned Judicial Magistrate acquitted the respondent No. 1 on the ground that the existing financial liability for the discharge as claimed by the applicant was not duly proved. It was also noticed that the applicant failed to prove source of his income which could make such huge amount available to him for lending to the respondent No. 1. It appears, prima facie, that the applicant approached the trial Court with the case that he had received pensionary benefits like gratuity, etc. and, therefore, there was availability of money with him. He also asserted that there was cordial relationship between himself and the respondent No. 1 due to the fact that both of them are inhabitants of the same locality and were working together. It was the case of the respondent ( 4 ) No. 1 that the cheques were stolen away from his house. The learned Magistrate observed that if such defence of the respondent No. 1 could be relied on, then natural question would be as to why he had not taken any legal action against the applicant. For, the respondent No.1 did not file any report with the Police Station or lodge any complaint in the Court. The learned Magistrate, however, observed that considering close relations between the parties, he might not have taken such criminal action against the applicant. The learned Magistrate observed : “Reaction of a human being cannot be set in straight jacket formula, therefore, though the accused has not prosecuted the complainant, it cannot be said that his defence is unreliable.” The human psychology is conveniently used in favour of the respondent No.1, but the other side of the coin is not properly examined. Under the circumstances, I am inclined to hold that this is a fit case in which leave to appeal is required to be granted. The application is, therefore, allowed. Leave to appeal is granted. ( 5 ) 5. Admit the appeal. 6. The applicant/appellant to furnish private paper book within ten (10) weeks. Mr. R.S. Deshmukh waives service for the respondent No.1. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPLN1492-1491-09