(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 1652 of 2010 Sukhraj s/o. Shahuraj Kolge, Age : 50 years, Occupation : Agriculture, R/o. Nandurga, Post : Karajkheda, Taluka & District : Osmanabad. .. Applicant. versus 1. Govindlal Dwarkadas Hedda, Age : 58 years, Occupation : Agriculture and Business, R/o. Bembali, Taluka & District : Osmanabad. 2. The State of Maharashtra. .. Respondents. ....................... Mr. M.P. Tripathi, Advocate, holding for Mr. P.R. Kadam, Advocate, for the applicant. Mr. M.B. Kolpe, Advocate, for respondent no.1. Mr. B.V. Wagh, Additional Public Prosecutor, for respondent no.2. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 7TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the respective parties. 2. This is an application preferred by the applicant (original complainant), seeking leave to file appeal challenging the judgment and order dated 9th December 2009, passed by the learned Judicial Magistrate (F.C.), IV Court, Osmanabad, in Summary Criminal Case No. 1823/2004, thereby acquitting respondent no.1 herein (original accused) for the offence under Section 138 of the Negotiable Instrument Act. 3. I have perused the impugned judgment dated 9th December 2009, as well as perused the record and proceedings with the assistance of learned Counsel for the parties. 4. Briefly stated, facts of the present case are as follows : It is alleged that the complainant and accused are (3) agriculturists and friends of each other and they were having cordial relations. The accused intended to purchase land adjacent to his land and, therefore, he was in need of money and hence, asked Rs. 50,000/- from the complainant and assured to pay the same within one month. Accordingly, complainant paid amount of Rs. 50,000/- to the accused in the presence of one Balbhim Jadhav. After one month, the complainant demanded the said amount of Rs. 50,000/- from the accused . Hence, accused issued cheque bearing No. 379937 drawn on Osmanabad District Central Cooperative Bank, Branch at Bembali, dated 18-8-2004. Accordingly, the complainant presented the said cheque for encashment purpose on 21-10-2004. However, the said cheque was dishonoured and returned unpaid with the endorsement, 'insufficient funds' on the account of accused. Hence, the complainant issued demand notice to the accused on 6-11-2004 demanding the cheque amount. The accused received said notice on 8-11-2004. But the accused neither replied the said notice nor paid the amount mentioned in the notice to the complainant. Hence, the complainant filed complaint under Section 138 of the Negotiable Instrument Act. 5. After recording verification of the complainant, process came to be issued against the accused under Section 138 (4) of the Negotiable Instrument Act. Accordingly, accused appeared in the said matter and plea was recorded. Accused pleaded not guilty and claimed to be tried. The complainant filed his affidavit of evidence in lieu of examination in chief at Exhibit 18 and also produced the cheque in question at Exhibit 20. The written memo of the Bank thereby returning cheque due to insufficient funds in the account of the accused is at Exhibit 21 and written intimation given by the Bank to the complainant is at Exhibit 22. Xerox copy of the notice issued by the complainant (petitioner herein) to the accused (respondent no.1 herein) dated 6-11-2004 and envelope thereof were produced on record, however, the same were not give exhibit number. However, acknowledgment of the said demand notice is at Exhibit 23. Accordingly, the complainant examined himself and adduced oral as well as produced aforesaid documentary evidence, whereas accused did not examine himself but examined one witness in his defence, namely, Amol Hanmantrao Lakal, employee of District Central Cooperative Bank, Osmanabad. 6. Accordingly, after considering oral evidence adduced by the complainant as well as aforesaid documentary evidence produced by the complainant, initial presumption is raised in favour of complainant under Section 118(a) and 139 of (5) Negotiable Instruments Act, that the accused issued disputed cheque in question to the complainant towards discharge of liability in part or whole. However, the said presumption is rebuttable and the standard of proof required therefor is on preponderance of probability. 7. Hence, the question arises, whether the accused has rebutted the said presumption. In this context, it is necessary to advert to the defence raised by the accused and defence of the accused is that his cheque book was lost and complainant has misused the lost cheque by fabricating it. In order to corroborate his defence, the accused has examined one defence witness, as aforesaid, namely, Amol Hanmantrao Lakal, at Exhibit 43. On perusal of deposition of said defence witness Amol Lakal, employee of District Central Cooperative Bank, it is seen that he has stated that accused gave intimation to the Bank, that cheque in question i.e. cheque No. 3799337 was lost and he also produced the letter dated 17-6-2004 issued by the accused in that respect to the Bank which is marked as Exhibit 45. On perusal of the said letter dated 17-6-2004, Exhibit 45, issued by the accused to the Bank, it is seen that accused had categorically informed to the Bank that said cheque No. 3799337 was lost and the same not be honoured. Hence, it is apparent that the accused has probablised his defence on proponderance of probability and (6) rebutted the presumption raised against him. 8. Thus, since the accused has probablised the defence and rebutted the presumption raised against him on preponderance of probability, the burden shifts upon the complainant to prove and establish that there existed legally enforceable debt against the accused and the accused issued the cheque in question to the complainant towards discharge of legally enforceable debt / liability partly or in whole, beyond reasonable doubt. 9. Hence, in the said context, it is necessary to assess the evidence adduced and produced by the complainant and it is pertinent to note that the complainant has failed to produce any document showing that he had given hand loan of Rs. 50,000/- to the accused. In his cross examination, the complainant has admitted that he gave money to the accused which he had received from market yard. The complainant has further stated in the cross examination that he brought money from Vyankatrao Jadhav of Latur. However, the complainant did not examine said Vyankatrao Jadhav to substantiate the said contention. Moreover, it is the case of the complainant that he gave amount of Rs. 50,000/- to the accused in the presence of one Balbhim Jadhav. However, the complainant has failed to examine said (7) Balbhim Jadhav to substantiate the said contention. Hence, it is amply clear that the complainant has failed to prove and establish beyond reasonable doubt, that the complainant had advanced hand loan of Rs. 50,000/- to the accused and consequently, the complainant has also failed to prove and establish beyond reasonable doubt that disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable debt / liability partly or in whole. 10. Apart from that, the complainant has failed to produce office copy of the notice dated 6-11-2004 issued to the accused and he has produced xerox copy thereof on record which has not been exhibited by the learned trial court. Moreover, learned trial court has also observed in the impugned judgment, that the signature of the accused on cheque in question, at Exhibit 20, and the signature of the accused on the postal acknowledgment Exhibit 23, differ from each other. 11. Having comprehensive view of the matter, it is apparent that the view adopted by the learned trial court, while acquitting the accused, after assessing and analyzing evidence on record, is a possible view to be adopted and same does not appear to be perverse and the reasoning given therefor also (8) cannot be faulted with. Hence, no interference is called for in appellate jurisdiction, and therefore, present application deserves to be dismissed. 12. In the result, present Criminal Application which is sans merits stands dismissed. Consequently, leave to file appeal is refused. 13. Record and proceedings be sent back to concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka1652