(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 861 of 2010 Hanuman Gramin Bigar Sheti Sahakari Patsanstha Maryadit, Matola, Divisional Office is at Omerga, Taluka : Omerga, District : Osmanabad, Through Shri Shivaji s/o. Vitthalrao Chavan, Age : 38 years, Occupation : Service, .. Applicant R/o. Omerga, Taluka : Omerga, (Original complainant) District : Osmanabad. versus 1. Tanaji s/o. Venkatrao Buye, Age : 42 years, Occupation : Tailor, R/o. : Disco-Tailor, Kala Math, Patange Road, Taluka : Omerga, District : Osmanabad. .. Respondents (No.1 - Original 2. The State of Maharashtra. accused) ....................... Mr. N.B. Ghute, Advocate, holding for Mr. S.B. Ghute, Advocate, for the applicant. Mr. S.A. Nagarsoge, Advocate, for respondent no.1. (2) Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.2. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST JULY 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant (original complainant) seeking leave to file appeal challenging the judgment and order dated 11-1-2010, rendered by the learned Judicial Magistrate (First Class), Omerga, in Summary Criminal Case No. 1001/2007, thereby acquitting respondent no.1 (original accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 3. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 4. Briefly stated, case of the complainant is that the complainant is a Credit Society and the accused obtained loan of (3) Rs. 35,976/- from it for business purpose. The complainant demanded the said amount from the accused. Thereafter, accused issued cheque bearing No. 302059, dated 24-9-2007, to the complainant drawn on Solapur Janata Sahakari Bank, Branch Omerga. The complainant presented the said cheque for encashment purpose on the same day, however, it was returned unpaid with remark "funds insufficient" on 17-10-2007. Hence, the complainant issued demand notice to the accused on 18-10-2007 by RPAD, which was received by the accused on 21-10-2007. The said notice was replied by the accused by reply dated 24-10-2007 and thereby refused to make the payment of the said cheque amount. Hence, the complainant filed complaint against the accused under Section 138 of Negotiable Instruments Act. The plea of the accused was recorded and he pleaded not guilty and claimed to be tried. 5. To substantiate the case of the complainant, he examined two witnesses i.e. (1) complainant's Registrar, namely, Shivaji Vithalrao Chavan, and (2) Dayanand Devidas Bhosale (Pigmy Agent). Moreover, complainant also produced the disputed cheque in question at Exhibit 24, Bank return memo at Exhibit 25, copy of demand notice at Exhibit 26, postal acknowledgment at Exhibit 27, and reply to the said notice at Exhibit 28. (4) 6. It is apparent from the oral and documentary evidence adduced and produced by the complainant, that initial presumption is raised in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act, that the accused herein issued the disputed cheque in question to the complainant towards discharge of liability. It is settled principle that the said presumption is rebuttable, but the standard of proof required therefor is on preponderance of probability. Hence, the question arises whether the accused has rebutted the said presumption, as aforesaid. In the said context, accused examined his guarantor, namely, Sunil Chavan, and also examined Branch Manager of District Central Cooperative Bank, Narangwadi Branch, namely, Ram Birasdar, and also produced Pigmy Passbook Exhibit 29, F.D.R. Receipts at Exhibits 30 and 31, respectively, as well as, Witness No.2 Ram Birasdar produced the documents at Exhibits 65 and 66. 7. The defence of the accused is that the complainant / Society gave the Demand Draft of Rs. 34,890/- to the accused on 26-8-2006 and certified copy thereof has been produced by the complainant at Exhibit 65. Although complainant had advanced loan of Rs. 50,000/- to the accused, only amount of Rs. 34,890/- was paid to the accused towards the loan. Moreover, the accused (5) does not owe anything to the complainant and while advancing the loan, the complainant obtained two blank signed cheques from the accused towards security and out of the said cheque, one cheque was misused by the complainant and filed the present case against him falsely. To substantiate the said defence, accused examined Witness No.2, namely, Ram Birajdar, who has categorically stated that the complainant / Society gave Demand Draft of Rs. 34,890/- to the accused on 26-8-2006 and produced certified copy thereof at Exhibit 65, which is admitted by the complainant, and therefore, apparently, it appears that the complainant although sanctioned loan of Rs. 50,000/- to the accused, only amount of Rs. 34,890/- was paid to the accused towards the said loan. As regards further defence of the accused, that the complainant / Society had obtained two blank signed cheques from the accused and one of them was misused, Witness No.1 Sunil Chavan, who was guarantor to the said loan, has substantiated the defence of the accused, that complainant had obtained two blank signed cheques from the accused at the time of grant of loan. Hence, it is apparent that the accused has probabalised his defence on preponderance of probability and rebutted the presumption raised against him. 8. Hence, onus shifts upon the complainant to prove and establish beyond reasonable doubt, that there existed legally (6) enforceable debt / liability against the accused at the time of issuance of cheque and the disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable liability, partly or in whole. However, it is material to note that the complainant has not produced any documents of loan advanced to the accused, on record, and the learned trial court in the said context has observed that on which date loan was given to the accused, and what was interest thereof, has not been stated / brought on record by the complainant. Moreover, learned trial court has further observed that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt of Rs. 35,976/- against the accused on 24-9-2007 and the accused issued the disputed cheque in question to the complainant towards discharge of the debt / liability, partly or in whole, and accordingly, the said observations and findings cannot be faulted with. 9. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view, and the same does not appear to be perverse, and hence, no interference therein is called for, and therefore, present application deserves to be rejected. (7) 10. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. 11. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/861ka