1 Cri.Appln. 5349.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5349 OF 2010 Ramchandra S/o Shankarlalji Jaju ... APPLICANT VERSUS Somnath S/o Murlidhar Maid ... RESPONDENT ..... Shri A.N. Nagargoje, Advocate for the applicant Shri A.B. Nehe, Advocate for respondent ..... CORAM : U.D. SALVI, J. DATED : 30 th August, 2011. PER COURT : 1. Heard. Perused application and the record. 2. Leave to prefer an appeal against the Judgment and Order acquitting the respondent / accused of the offence punishable under Section 138 of Negotiable Instruments Act passed by the learned Judicial Magistrate First Class, Sangamner, Dist. Ahmednagar, in S.T.C. No. 59/2009 on dated 18-08-2010,is sought. 2 Cri.Appln. 5349.10 3. The learned Trial Court on appreciation of evidence found that there was no legally enforceable debt warranting issuance of cheque at (Exh. 22). According to the complainant, the accused had issued Cheque No. 136457, dated 02-02-2008 drawn on The Sangamner Marchants Co-op. Bank Limited, Branch Sangamner, for Rs. 50,000/- for repayment of the hand loan of Rs. 50,000/- lend to him, and the said cheque was dishonored. Notice, demanding payment under the cheque, was issued to the accused. It was replied, thereby raising a contention that the cheque in question was issued as a security in a transaction of sub dealership of consumer gas with Sham Jaju, the brother of the complainant, who was dealer of Divine Gas Agency at Kolhewadi. The accused denied the transaction of hand loan vide reply to the notice dated 26-04-2008. 4. The complainant examined himself and chose not to examine any more witness, much less his brother Sham Jaju. In the cross-examination, the complainant was confronted with Counterfoil of the cheque in question. The Counterfoil was dated 21-10-1999, and the complainant admitted this fact as well as the fact of existence of signature of his brother thereon. He also admitted the signature of his brother on a note which carried an endorsement “ Surakshatekrita Suruchi Divine Gas Agency” (as a 3 Cri.Appln. 5349.10 security of Suruchi Divine Gas Agency). He further admitted in his cross-examination that the Gas Agency of his brother was shut down at least some five to six years back. These facts revealed in his cross-examination weighed heavily with the learned Trial Court prompting him to make following observations. “ Considering the overall documentary evidence, oral evidence and all above aspects of the matter this Court comes to the conclusion that the defence raised by the accused in the case at hand is established in proper perspective and it dislodges the case of the complainant about advancement of hand loan of Rs. 50,000/- to the accused. The complainant failed to prove that the cheque at Exh. 22 was drawn in his favour by the accused towards the discharge in whole or in part, of any legally enforceable debt or other liability, hence, point No. 1 is answered in the negative. “ 5. The observations made by the learned Trial Court stand firmly, both on facts and law. No interference is, therefore, warranted in the impugned Judgment and order of acquittal. The present application is, therefore, rejected. Leave refused. ( U.D. SALVI, J. ) SDM*-August-11.