( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3659 OF 2007 Deogiri Nagari Sahakari Bank Ltd. .. Applicant Versus The State of Maharashtra and another .. Respondents Mrs. B.R. Khekale, A.P.P. for respondent State. CORAM : P.R. BORKAR,J. DATED : 08.03.2010 P.C. :- 1. None present for the applicant when called out. A.P.P. Mrs. B.R. Khekale is present for the respondent/State. 2. The advocate for the applicant did not turn up even on previous three dates though on last date i.e. on 22.02.2010, another advocate sought adjournment on behalf of ( 2 ) the applicant. This is a matter of the year 2007. For non- prosecution, the application is dismissed. [P.R. BORKAR,J.] 3. In the afternoon session Adv. Shri B.B. Kulkarni appears for the applicant and states that he was engaged in some other Court, therefore, he could not attend the matter when the matter was called out earlier. In view of the reason given, the earlier order of dismissal is recalled and Adv. Shri B.B. Kulkarni, for the applicant is heard on merit. 4. Brief facts giving rise to file the application may be stated as below :- . Respondent No.2/accused had borrowed loan of Rs. 15 lakhs from the applicant/bank. Towards repayment of loan, respondent No.2 had issued cheque bearing No. 698755 dated 30.12.2002 of Rs. 18,06,891/-, drawn on Deogiri Nagari Sahakari Bank Ltd., Kranti Chowk, Aurangabad. The cheque was presented in the bank. It was returned unpaid on the ground ( 3 ) that the funds were not arranged and thereafter the notice was given on 23.06.2002 by the applicant to respondent No.2 through R.P.A.D. Inspite of the notice, payment was not made and hence the complaint for committing offence punishable under section 138 of the Negotiable Instruments Act, was filed by the applicant against respondent No.2. 5. The case is registered as S.C.C. No. 4459 of 2003. The learned 5th Judicial Magistrate First Class, Aurangabad, passed order of acquittal on 30.04.2007, mainly on the ground that the cheque was not issued in discharge of debt or legal liability. In para 11 of the judgment, the learned Magistrate observed that there was no cogent and convincing evidence for establishing fact that when cheque was issued, there was existing legal liability of Rs. 18,06,891/-. Though the accused has not entered into witness box to lead positive evidence, the evidence of the complainant fell short and thus it was held that the presumption is rebutted. Some of the facts appearing from para 9 and 10 of the Trial Court judgment are relevant. 6. It is stated in para 9 of the judgment that the ( 4 ) accused admitted availment of loan, but seriously disputed his liability of Rs. 18,06,891/-. The bank initiated recovery proceeding under section 101 of the Maharashtra Co- operative Societies Act, before the Dy. Registrar, Co- operative Societies, Aurangabad. The Dy. Registrar issued recovery certificate against the accused of Rs. 17,94,430/- on 11.11.1999. As against said order, present respondent No. 2/accused filed Revision Application No. 213 of 1999 before the Divisional Joint Registrar, Co-operative Societies, Aurangabad, under section 154 of the Maharashtra Co-operative Societies, Aurangabad. Said revision application came to be partly allowed and the matter was remanded back to the Dy. Registrar, for denovo trial, by order dated 16.05.2005. The judgment of the Joint Registrar is at Exh. 38/A. The question that was raised is whether when in between 1999 till 2005, the liability was seriously disputed by respondent No. 2/accused before the Joint Registrar, would he issue the cheque in question. It is also observed that the Revision Application No. 213 of 1999 was filed by respondent No. 2/accused on 06.12.1999. So, when the alleged cheque was issued on 30.12.2002, the matter was very much pending before the Joint Registrar and in the circumstances the theory of ( 5 ) the accused voluntarily issuing cheque is of doubtful nature. 7. In para 10 of the judgment the Trial Court observed that for justifying the liability of Rs. 18,06,891/-, there was oral evidence of C.W.1, but he did not produce any record at that time and subsequently an account extract was produced on record which is at Exh.28. But, as it was produced subsequent to the evidence of C.W.1–Shashikant, there was no reference regarding correctness of the account extract produced. Moreover, the learned Magistrate referred to the judgment of the Joint Registrar, Co-operative Societies, which is produced at Exh.38/A and observed that in last paragraph the Joint Charity Commissioner made observations regarding correctness and genuineness of the claim of the complainant bank. There was serious dispute regarding the liability covered by the recovery certificate and therefore denovo trial was directed by the Dy. Registrar and admittedly that denovo trial was not completed when the judgment was delivered by the Trial Court. If we consider reasons given, the account extract itself would not be sufficient as the accounts maintained by the bank are not only disputed by respondent No.2, but it is observed by Jt. Registrar, Co- ( 6 ) operative Societies and held that further enquiry into same was required and therefore he remanded the matter. In the circumstances, it cannot be said that the Trial Court committed any error in holding that the complainant failed to prove that on the date of issuance of cheque, an amount of Rs. 18,06,891/- or more, was due to respondent No.2. 8. In the facts and circumstances of the case, in my opinion, this is not case where leave to file appeal can be granted as the impugned judgment is reasonable and proper. It is now well settled that when the view taken by the Trial Court is reasonable and proper, appeal against acquittal cannot be entertained. 9. Hence, the leave to file appeal against acquittal is rejected. The Criminal Application is dismissed and disposed of accordingly. [P.R. BORKAR,J.] snk/2010/MAR10/cra3659.07