1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2270 OF 2007 Vasantdada Nagari Sahakari Path Sanstha Ltd., Jath, .. .. Applicant. Vs. Sangappa Muttappa Kaujlgi & Anr. .. .. Respondents ­­­ Shri Uday C. Warunjikar for the Applicant. Shri Niranjan P. Mundargi for the Respondent No.1. Smt. V.R.Bhosale, APP for the Respondent No.2. ­­­ CORAM : J.H. BHATIA, J. DATE : 21ST MARCH, 2011 P.C. : 1 None was present for the applicant in the first session, when the matter was called out. By a separate order this application was dismissed in default. Later on Mr. Warunjikar, Advocate appears for the Applicant and on his oral request the application is hereby restored to file and the order of dismissal passed in the first session is hereby recalled. 2 Heard the learned counsel for the parties. This application is filed by the original complainant, seeking leave to prefer an Appeal against the order of acquittal passed in Summons Criminal Case No. 635 of 2004 filed under section 138 of the Negotiable Instruments Act. The prosecution case in brief is that a loan of Rs.16,00,000/­ was sanctioned by the complainant which is a cooperative credit society in favour of the accused­ respondent no.1 and that amount was disbursed 2 on 31.05.2003 in favour of the accused­respondent no.1. On 25.09.2004, the accused issued a cheque no. 9009014 against his account with Canara Bank, branch at Sangli for repayment of Rs. 4,48,450/­ in favour of the company. That cheque was dis­honoured and in spite of service of notice, the accused failed to make payment. It was contention of the accused that the loan amount in question was never disbursed to him and that his signatures were obtained on stamp­papers and cheque numbers as security of the loan to be given. On behalf of the complainant its Secretary, Dattatraya D. Sonar filed affidavit­in­examination in chief but he was cross­examined at length. The trial court acquitted the accused on two grounds. Firstly, that an affidavit ­in ­examination in chief was not properly filed and verified by the complainant itself and secondly, the evidence on record was not sufficient to prove that the loan was actually sanctioned and disbursed to the accused­respondent no.1 and that the accused had issued the cheque in question for repayment of the loan amount. 3 On perusal of the evidence of Dattatraya D.Sonar it appears that out of the alleged sanctioned loan amount of Rs. 16 lakhs, an amount of Rs. 15,75,180/­ was credited in his account maintained with the Sangli Branch by the complainant. That entry was taken on 31.05.2003. At the same time three debit entries were taken. As per those debit entries, the amounts of Rs.12,67,321., Rs.1,60,000/­ and Rs. 3300/­ were withdrawn by the accused­respondent no.1. Then there was a debit entry of Rs. 1,00,000/­ on 02.06.2003. On 04.06.2003 there was a debit entry of Rs. 11,000/­ and there was a debit entry of Rs.35000/­ on 4.6.2003. And lastly, there was a debit entry of Rs.1000/­ on 13.03.2003. It is pertinent to note here that the 3 debit entries do not show that the amounts withdrawn on 31.05.2003 and 02.06.2003 were withdrawn by issuance of cheques. Otherwise, the cheque numbers must have been noted against the relevant entries. The cross­examination of Shri Dattatraya D.Sonar shows that he was asked and he agreed to produce vouchers and receipts about the amounts withdrawn by the accused in cash. However, no such document was produced by the complainant. Thus there is no documentary evidence to show the actual payment of more than Rs. 15,55,000/­. Inspite of the opportunity given to the complainant no material was produced by him to show that the amount is actually paid to the accused. 4 It is a settled position of law that the appellate court will not normally interfere in the order of acquittal unless the order is per­se wrong, perverse or illegal. It is also settled position of law that merely because on re­appreciation of the evidence, a different view is also possible, the appellate court will not interfere. In the present case, the trial court has considered the evidence led by the complainant and come to the conclusion that the complainant had failed to prove the payment of loan amount. In view of these facts it is difficult to say that the impugned order is perverse, per­se wrong or illegal. In such circumstances, no purpose would be served by granting leave to prefer an appeal. 5 Therefore, the application stands rejected. (J. H. BHATIA,J.)