1 crap869.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 869 OF 2011 Gautam s/o Motilal Jain ...Applicant VERSUS Baburao s/o Sadasiv Gadge ...Respondent ..... Shri V.B.Patil, advocate h/for Shri B.S.Deshmukh, advocate for applicant ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 1 st April, 2011 PER COURT : 1 Heard Shri V.B.Patil, advocate h/for Shri B.S.Deshmukh, advocate for applicant. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order of acquittal dated 24.12.2010, rendered by the learned Judicial Magistrate, First Class, Nanded in Summary Criminal Case 2 crap869.11 No. 3342 of 2010, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 I have perused the impugned judgment and order and considered the submissions advanced by the learned counsel for the applicant anxiously. 4 The factual matrix of the matter is as follows :- It is the case of the complainant that he was having cordial relations with the accused and since the accused was in need of an amount of Rs. 5,00,000/-, he approached the complainant and requested to pay the said amount to him, and since the complainant and accused were having cordial relations, the complainant paid amount of Rs.5,00,000/- to the accused on 20.8.2004. The accused promised to repay the said amount within two months. After two months, the complainant demanded the said amount from the accused. In response, the accused issued a cheque bearing No. 228450, dated 1.11.2004. Accordingly, the complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and was returned back unpaid with the endorsement, “funds insufficient” along with the bank memo therein 3 crap869.11 on 4.11.2004. Hence, the complainant sent demand notice to the accused on 1.12.2004. It is the grievance of the complainant that despite issuance of said notice, the accused failed to repay the cheque amount, and hence, the complainant filed the complaint against the accused. 5 The accused appeared therein and substance of the offence was explained to him and he pleaded not guilty and claimed to be tried. 6 To substantiate the case of the complainant, the complainant examined three witnesses i.e. PW1 complainant himself, PW2 Prakash Ramkishan Sharma, but his evidence was dropped by the complainant by filing purshis at Exh.80 and PW3 bank witness namely Anup Shankarrao Naik. Accordingly, the prosecution adduced the oral evidence and produced the documentary evidence, such as disputed cheque Exh.34, demand notice Exh. 35, postal receipt Exh.36, acknowledgment Exh.37, cheque return memo Exh. 38, statement of account Exh. 79. 7 The accused also adduced oral evidence and examined himself as DW1, as well as examined one witness DW2 Anil Shyamrao Wadikar and also placed his reliance on power of 4 crap869.11 attorney Exh.47 and cancellation of power of attorney deed Exh.48, and certified copy of the order in M.C.A. No. 381 of 2008 Exh.87 and the complainant’s application for opening current account Exh.98, as well as true copy of shop registration record filed at Article ‘A’. In short, the defence of accused is that the accused tendered blank cheque to the complainant towards security, which was received by the complainant and in support, he produced the power of attorney Exh.47 and cancellation of power of attorney deed Exh.48. 8 Considering the evidence adduced and produced by the complainant, as well as the accused and also considering the rival submissions advanced by the learned counsel for the parties, the Trial Court acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act by judgment and order, dated 24.12.2010. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant has preferred the present application seeking leave to file appeal against the said order of acquittal. 9 At the out set, considering the oral evidence adduced by the complainant, as mentioned herein above, as well as considering the documentary evidence produced by the complainant, such as cheque in question Exh.34, demand notice Exh. 35, postal receipt 5 crap869.11 Exh.36, acknowledgment Exh.37, cheque return memo Exh. 38, statement of account Exh. 79, it is apparently clear that the initial presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant that the accused issued cheque in question to the complainant towards discharge of liability/debt partly or in whole, but the said presumption is rebuttable. 10 Now, the question is whether the accused has rebutted the said presumption and the standard of proof for the said rebuttal is on preponderance of probability. In the said context, the accused has examined himself, as mentioned herein above, as DW1 and also examined DW2 Anil Wadikar and put forth his defence through the said oral evidence, as well as through the cross-examination of the complainant conducted by him and also through the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. Accordingly, the accused can very well rely upon the infirmities in the case of the complainant. In support of his probable defence, the accused filed the application for opening the current account at Exh.98, and on perusal, it is seen that account no.49 was in the name of Mahavir Finance and same was operated by G.M.Jain i.e. the complainant, as well as said account opening form bears the photograph and signature, which pertain to the complainant herein, which leads to the position that the complainant owns the business of 6 crap869.11 finance, which consequently leads to the position that the alleged amount was not given by the complainant to the accused out of the cordial relations. The question arises, if the complainant is not running the business of finance, then why and how he opened the account in the name of Mahavir Finance. 11 Moreover, it is also apparent that disputed cheque in question bears different inks in respect of contents and signature, and the Trial Court discussed the said aspect of probable defence of the accused and came to the conclusion that the accused has probablised his defence, and apparently, there is no flaw in the reasoning adopted by the Trial Court in that respect. Hence, the accused has discharged the burden on preponderance of probability by probablising his defence, and therefore, burden shifts upon the complainant to prove and establish beyond reasonable doubt that the accused issued the cheque in question to the complainant towards discharge of legally enforceable liability/debt. 12 In the said context, the Trial Court has given reasons and causes in para no.17 of the impugned judgment, after analying the evidence before it, which manifestly disclose that the complainant failed to file statement of daily account as well as income tax returns disclosing the afore said huge amount of Rs.5,00,000/- advanced to 7 crap869.11 the accused therein, and consequently, came to the conclusion that the complainant failed to prove and establish beyond reasonable doubt that the disputed cheque was issued by the accused towards discharge of legally enforceable liability and answered the said issue in negative and the reasoning adopted for the said conclusion, apparently, cannot be faulted with. 13 In the circumstances, having the comprehensive view of the matter, it appears that after scrutinizing and analysing the evidence, the view adopted by the Trial Court while acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, is a possible view and same does not appear to be perverse, and therefore, no interference is called for therein and present application deserves to be rejected. 14 In the result, present application bears no substance and same is devoid of any merits, and therefore, same stands dismissed. Leave to file appeal is refused and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap869.11