1 Meera IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.200 of 2009 Mukesh Pravinchandra Shah ..Applicant Vs. Rooplal C. Jain & Ors. ..Respondents Mr. A.M.Sarogi for the Applicant Mr. Mali for Respondents No.1 & 2 Mr. U.V.Nikam APP Coram: A.R.Joshi, J Date : 30th June, 2009 P.C. 1. Learned Advocate Mr. Mali for Respondents No.1 & 2 stated that copy of the Appeal Memo and other documents are not served on him. Learned Advocate for the Applicant complied the same today. On this it was decided by consent of both the parties to hear the arguments and to dispose off present leave Petition. As such rival arguments are heard at length. 2. It is the leave petition preferred by the Applicant challenging the order of 28th Court, Esplanade, Mumbai, dated 29.09.2000. By 2 the said order both the Respondents No.1 & 2- original Accused were acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act. This is the Judgment and order which is challenged. 3. On hearing the rival arguments and on perusal of the record and proceedings of the matter, it appears that it is the case of present Applicant / complainant of giving loan of Rs.2 lacs to the Accused No.2 for Accused No.1 and such loan was given in cash on 01.01.2003. Admittedly on that date no any writing was effected as to passing of such cash amount of Rs.2 lacs either to Respondent No.1 or Respondent No.2. Significantly on the same day allegedly one visiting card of the proprietary concern of Accused No.1 came to be given to the Complainant and on the reverse of the said card allegedly there was a sort of acknowledgment of the loan with signature of Accused No.2 who is the son of Accused No.1. The said endorsement at the back of the said card read “Do Peti pura”. This endorsement is in vernacular language and not in English. Needless to mention that plain reading of the said endorsement still accepting that it was a card given under the signature of Respondents – Accused No.2, cannot be termed as acknowledgment for receipt of the loan amount of Rs.2 lacs. The reasoning has been given by the trial Magistrate while rejecting such evidence of the prosecution as to the acknowledgment of Rs.2 lacs. 3 4. It is also significant to note that such amount of Rs.2 lacs allegedly given as loan either to Accused No.1 or Accused No.2 as there is a confusion created by the Complainant himself by his pleadings and by his oral evidence, was not shown in any of his income tax returns of the relevant year. This circumstance also weighed with the trial court in disbelieving the case of the complainant. 5. It must be mentioned that admittedly prior to depositing the said cheque of Rs.2 lacs allegedly given by Accused No.2, it was to the knowledge of the Complainant that the concerned account in the name of Accused No.1 as a sole proprietor with concerned bank, from which the said cheuqe was drawn, was already closed somewhere in March, 2003 and it was made known to the complainant by notice dated 04.06.2004, addressed on behalf of Respondents – Accused No.1. In fact it is curious to note that this is the notice which discloses the case of the Accused as to under what circumstances such dishonoured cheques came to be given to the complainant. Such notice was answered by the complaint through his Advocate by letter dated 21.06.2004 mentioning his own case as narrated in the original complaint and it is also an admitted position that after knowing the stand of the Accused persons and also very well knowing that the account under which such cheque was given was already closed down, complainant put the said cheuqe in his bank for realisation and consequently it was dishonoured, with the endorsement as “account closed”. In the result the demand notice dated 23.06.2004 came to be 4 issued to both the Accused/ Respondents. Trial court had also dealt with this factual position and considering the effect of earlier two circumstances came to the conclusion as to failure of the complainant to establish his own case and as to any existence of legally enforceable liability and consequently dismissed the complaint resulting in acquittal of the Respondent. 6. Considering the above factual position in the opinion of this court, there is nothing to interfere with the said impugned judgment and order in the Appeal before this court as such there is nothing to allow the present leave petition and the same is accordingly dismissed and disposed of. (A.R.Joshi, J)