(1) CRI.APP. 3986.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3986 OF 2009 Ravindra S/o Laxmanrao Deshpande Age : 36 years, Occu.: At present Agri., R/o Varad Niwas, Behind Ram Mandir, Nutan Vasahat, Old Jalna, Taluka and District Jalna .. Applicant VERSUS 1. Purushottam S/o Mainaji Mehetre Proprietor Tirupati Balaji Electronics, Age : 38 years, Occu.: Business, R/o Behind Chanakya Hotel, Bhagya Nagar, Old Jalna, Jalna 2. The State of Maharashtra Through Govt. Pleader .. Respondents Mr. J.C. Badve, Advocate for the Applicant Mrs. S.D. Shelke, APP for the respondent-State Mrs. S.C. Thombre, Advocate h/f. Mr. C.V. Thombre, Advocate for the respondent no.1 ... CORAM : V.R. KINGAONKAR, J. DATED : 6TH SEPTEMBER, 2010 ORAL ORDER:- 1. This is an Application seeking leave to Appeal. 2. Heard learned Advocate for the parties. (2) CRI.APP. 3986.2009 Mrs. Thombre S.C. waives service for the respondent no.1. 3. The applicant is original complainant who filed complaint for offence under section 138 of the Negotiable Instruments Act and, therefore, the respondent was prosecuted in the private complaint case bearing STC no. 966 of 2006. It appears that the learned Judicial Magistrate (F.C.) Jalna acquitted the respondent mainly for the reason that the applicant failed to prove his financial viability to advance Rs.2,50,000/- which is the amount of the cheque in question. 4. On behalf of the respondent, it is contended that when the applicant is earning monthly salary of Rs.15,000/- and is required to maintain large number of family members, availability of such huge amount with him is improper. The complaint application shows that he was serving with the firm run by the respondent as an Instructor at the relevant time and moreover he was having his agricultural income being holder of agricultural land. The case of the (3) CRI.APP. 3986.2009 applicant was that on various occasions, the respondent no.1 obtained hand-loans from him from time to time during period between 2003 to June, 2005 in order to invest the same in his business. It is important to notice that the respondent was in fact in dominating position and, therefore, ordinarily he could not have issued the cheque under any duress or by fraudulent means. 5. It appears that defence of the respondent was that the applicant was unable to give the relevant amount and that the applicant had misused cheque which he had stolen from Jijamata Credit Society. It is further significant to notice that the learned Magistrate came to the conclusion that such defence of the respondent in respect of the commission of theft of cheque in question from Jijamata Credit Society is not at all proved. It is also noticed that the respondent did not file any complaint with the Police about the alleged theft of the cheque. Once such chief defence of the respondent was rejected, the trial Court should have considered the (4) CRI.APP. 3986.2009 presumptions available under the said enactment with the attending circumstances. 6. Considering these aspects, there is prima facie case in favour of the applicant to grant leave to Appeal. 7. In the result, the Application is allowed and the leave to Appeal is granted. Sd/- [V.R. KINGAONKAR, J.] arp