1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.765 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R. Borkar, J. Date : March 02, 2010 1. Heard Shri N.G. Shah, Advocate holding for Shri N.S.Ghanekar, Advocate for the applicant. 2. This is an application for leave to file appeal against the order passed by the learned J.M.F.C. (Railway) Aurangabad on 14.12.2009 in S.C.C. No. 581 of 2009, thereby acquitting the respondent-accused of the offences punishable under Sections 323 and 504 of I.P.C. 3. It is the case of the applicant that on 29.12.2008 at about 7.30 hours he along with his friend Hansraj Chavan had gone to Jijai Hospital, Pundliknagar, to demand money from the respondent. On making demand, accused-respondent, who is Medical practitioner, gave slaps and also fist blows and also abused the complainant. 2 4. The trial court held that the story told by complainant and tried to be supported by Hansraj Chavan and Manoj Dhote is not reliable because, even though the complaint was to the effect that the accused owed money to complainant and therefore complainant had demanded the money, still, till the evidence of the complainant in the court, no notice was given by complainant to the accused nor he made any attempt for recovery of the amount. It is clear that the incident had taken place on 29.12.2009 and thereafter statement was recorded on 28.10.2009. So, at least after such incident, the complainant would have immediately taken steps for issuing notice demanding the amount. Omission on the part of the complainant to take steps raises doubt whether the complainant had really gone to the hospital and demanded money from the accused which is allegedly due. 5. Secondly, it is stated that there were patients in the hospital, but none of them is examined so as to have independent witness. As such, in the absence of independent evidence, it was not possible to rely upon the word of the complainant. 3 6. PW-2 Manoj Dhote is, in fact, not a witness, as he is the Police Head Constable attached to Mukundwadi Police Station. He had recorded the complaint of the petitioner-complainant. Thus, the only evidence is that of petitioner and his friend Hansraj. It is also observed by the learned trial judge that mere filing of Non Cognizable Offence is no evidence to show that the incident had really occurred. The learned judge also felt that the incident is improbable, inasmuch as it is attributed to the accused that he said that the complainant had become arrogant and, therefore, it was necessary to bring him down. No one will address such words unless provoked. According to the complainant he had not provoked the accused while demanding the money. 7. In the circumstances, the view taken by the trial court can be said to be possible.It is not a perverse view. Therefore, leave to file appeal cannot be granted. 8. Application rejected. Leave refused. pnd/criap765.10 (P.R.BORKAR, J.)