- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2667 OF 2006 APPLICATION NO.2667 OF 2006 APPLICATION NO.2667 OF 2006 Dhanavarsha Nagari Sahakari Pat Sanstha Limited, Sangli ...Applicant vs. Sou.Geetanjali Ganpati Karande & Anr. ...Respondents Mr.Umesh Mankapure i/h M/s.J.Shekhar & Co.for the applicant. Mr.Vijay Killedar for Respondent no.1 Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 19,2009 : MARCH 19,2009 : MARCH 19,2009 P.C.: P.C.: P.C.: 1. Heard the Advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. I have also heard the learned counsel for the first respondent-accused. 2. The acquittal of the first respondent-accused is for offence under section 138 of the Negotiable Instruments Act,1881. 3. The case of the applicant is that on 30th December 1996, the first respondent obtained a loan of Rs.15,000/- from the applicant which is a credit society. The loan was not repaid. Therefore, the first respondent was called upon to pay the amount by serving notice. After service of notice, the cheque dated 19th July 1999 in the sum of Rs.26,222/- was issued by the first respondent favouring the applicant. The said cheque was dishonoured. Therefore, a notice of demand was issued by - 2 - the applicant to the first respondent and thereafter the present complaint was filed. 4. On the basis of the evidence of the defence witness, the learned Trial Judge has come to the conclusion that there is material on record to show that the applicant had taken blank cheque at the time of releasing loan and the said cheque has been deposited by the applicant which has been dishonoured. The learned Judge held that the cheque was not issued in discharge of existing legally recoverable debt. On this ground, the learned Judge has passed an order of acquittal. 5. The learned counsel for the applicant submitted that during the pendency of the complaint, the first respondent deposited the entire cheque amount of Rs.26,222/- with the trial court on 29th July 2005 and the said amount has been permitted to be withdrawn by the applicant without any objection by the first respondent. He submitted that the very fact that the first respondent unconditionally deposited the cheque amount shows that the cheque was issued towards legally enforceable debt or liability. He submitted that the defence that the blank cheque was taken by the first respondent was not raised by issuing a reply to the demand notice. He submitted that the said defence is not raised by the first respondent in his statement under section 313 of the Code of Criminal Procedure,1973 and therefore, the learned Judge has - 3 - committed an error by accepting the said defence. He submitted that there is no material to show that the cheque was issued in December 1996 by the first respondent after closing the account. 6. The learned counsel for the first respondent supported the impugned Judgment and order. On instructions he stated that even if the order of acquittal is confirmed, the first respondent will not file any proceedings against the applicant for recovery of a sum of Rs.26,222/- which amount has been withdrawn by the applicant. 7. I have given careful consideration to the submissions. According to the case of the applicant, the loan of Rs.15,000/- was released to the first respondent on 30th December 1996 which was to be repaid within a period of one year. The cheque in dispute is dated 19th July 1999. Perusal of the cross examination of the authorised representative of the applicant shows that a specific suggestion was given by the accused that when the loan was granted, blank cheques were obtained from the first respondent and the cheque in dispute was a blank cheque taken by the applicant at the time of granting loan. It is true that this defence has not been specifically set out by the first respondent while recording the statement under section 313 of the said Code. However, the first Respondent stated that he was desirous of examining - 4 - a defence witness. Accordingly, a defence witness Mr. Bhimrao Krishna Patil was examined who is an employee of Bank of India, Sangli. The cheque in dispute was drawn by the first respondent on his account with the said Bank of India, Gaobhag Branch, Sangli. The witness stated that on 28th January 1997, the first respondent made an application to close his account and the account was closed on 29th January 1997. It is stated that the cheque book containing cheque nos.8844221 to 8844251 was taken back from the first respondent by the said bank on 28th January 1997. 8. In a criminal case the burden on the complainant/prosecution and the burden on the accused is different. Normally the burden on prosecution is to prove the guilt beyond reasonable doubt. However, the accused can prove his defence by preponderance of probability. The cheque is dated 19th July 1999. The account on which the cheque was drawn was closed on 29th January 1997 and the cheque book from which the said cheque was issued was surrendered by the first respondent to his bank on 28th January 1997. Thus, the cheque must have been issued prior to 28th January 1997. Therefore, by preponderance of probability, the defence of the first respondent was established that the cheque in dispute must have been taken by the applicant at the time of granting loan. The said finding recorded by the learned trial Judge is certainly a possible finding which could have been recorded on - 5 - the basis of the evidence on record. Therefore, the court concluded that when the cheque was issued, it was not in discharge of a legally enforceable debt. 9. It is true that by an application at Exh.24 dated 29th July 2005, the first respondent sought permission of the trial court to deposit the cheque amount of Rs.26,222/- and the said amount was deposited with the trial court. The first respondent had pleaded not guilty. By no stretch of imagination the action of depositing the cheque amount in the court can amount to admission of the guilt on the part of the first respondent. In the facats of the case, only on the basis of the deposit of the cheque amount it is not possible to come to the conclusion that the guilt of the first respondent is established. 10. The learned counsel for the first respondent on instructions of the first respondent stated that no proceedings will be taken by the first respondent for claiming the refund of said amount even if leave to prefer an appeal is not granted in favour of the applicant. The said statement is accepted. 11. The view taken by the learned Judge is certainly a possible view. No case is made out for grant of leave. Application is rejected. - 6 - 12. In view of the categorical statement made by the first respondent which is recorded above, it will not be open for the first respondent to claim refund of the said amount of Rs.26,222/-. It is made clear that the observations made in this order are for limited purposes of granting leave to prefer an appeal. None of the observations made herein shall be construed as any finding on the rights and liabilities of the parties. JUDGE JUDGE JUDGE