1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.630/2010 Mayur Gramin Bigarsheti Sahakari Pat Sanstha Maryadit, Bahadarpur, Through Manager. Applicant V E R S U S Jahabir Ahamad Arab Respondent. Shri R. M. Deshmukh, Advocate for the applicant. Shri R.S. Shinde h/f Mr. N.L.Chaudhary, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 9 th JULY, 2010. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the judgment and order dated 15.1.2010, rendered by learned Judicial Magistrate First Class, Parola in SCC No.1095/2007, acquitting the respondent/original accused for the offence punishable under section 138 of Negotiable Instruments Act. 3. I have perused the impugned judgment and order of acquittal dated 15.1.2010 and record and proceeding with the assistance of learned 2 counsel for the parties. 4. The applicant-complainant is a registered co-operative society and accused was the member thereof and allegedly took loan of Rs.1,00,000/- but did not repay the said amount inspite of reminders of the complainant. However, it is alleged that accused ultimately issued a cheque No.282601 dated 21.9.2007 for Rs.1,22,000/-, drawn on Jalgaon District Central Co- operative Bank Ltd., Bahadarpur to the complainant. The complainant presented said cheque for encashment. However said cheque was dishonoured and returned unpaid with the endorsement “insufficient funds”. Hence, the complainant issued notice to the accused on 27.9.2007 by Registered Post, which was served upon accused on 3.10.2007 however accused did not comply with the requisitions contained in the said notice within prescribed period. Hence, after completing necessary formalities, complainant filed complaint against accused under section 138 of Negotiable Instruments Act, before learned Judicial Magistrate F.C., Parola. 5. Accused appeared therein and contested the said complaint. The defence of the accused is of total denial and false implication. 6. To substantiate the charge, complainant has examined two witnesses. Accused did not examine himself nor examined any other witness but put forth his defence through cross examination of the complainant. 3 Ultimately, trial judge concluded trial acquitting the accused by judgment and order dated 15.1.2010. 7. Being aggrieved and dissatisfied by said judgment and order, applicant has preferred present application seeking leave to file appeal against the same. 8. After scrutinizing and appreciating the evidence, learned trial judge observed that there are discrepancies in the loan application form, since loan application form is dated 7.4.2004 whereas loan of Rs.1,00,000/- was allegedly sanctioned to the accused by Resolution No.3 dated 16.3.2004 as disclosed on the reverse of the said application and complainant has not given any plausible explanation for the said discrepancy. Moreover, it is also pointed out that on the date of sanction of the said loan, accused was defaulter for the earlier loan and it is no where explained that when accused was defaulter in respect of the earlier loan amount, how the loan in question was sanctioned to him. Besides that, it is also observed that actual disbursement of the loan in question, in the present matter, has not been proved by the complainant. Moreover, it is further observed that presence of peon Rajendra Wani and need of taking his signature on Exh.34 i.e. cheque is also not explained. So also the interest calculation on quarterly rest basis is not explained. Besides that point of jurisdiction over village Mahalpur is also not 4 explained by the complainant. Accordingly, learned trial judge observed that from the admissions of the complainant, accused has probabilized his theory of misuse of documents by the complainant society and concluded that the loan amount shown to be pending against accused cannot be construed as legally enforced recoverable debt. 9. Having comprehensive view of the matter and after considering rival submissions advanced by both learned respective counsel, view adopted by learned trial judge after analyzing evidence on record appears to be based on sound footing and same cannot be faulted with. Moreover, reasoning adopted by the learned trial judge in the impugned judgment and order does not appear to be perverse and hence no interference therein is called for. 10. In the result, present application being sans merit stands dismissed. Leave to file appeal stands refused. 11. Record and proceeding be sent back to the trial court. ( SHRIHARI P. DAVARE, J. ) ..... aaa/630.10