1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3762 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri R.V.Gore, Advocate for the applicant and Smt.B.R.Khekale, APP for Respondent No.1-State. ----- 1. This is an application for leave to file appeal against order of acquittal passed in S.C.C. No.7704 of 2004 by learned Judicial Magistrate, First Class, Aurangabad on 20.8.2009. The applicant is original complainant who filed complaint against accused -Respondent No.2 for offence under Section 138 of the Negotiable Instruments Act. 2 2. Briefly, the case of the complainant is that father of Respondent No.2-accused expired and, therefore, he was in need of money and so he approached the complainant on the same day i.e.17.4.2004 requesting for hand loan of Rs.1.00 lakhs. Accordingly, on 17.5.2004 the complainant paid him Rs.1.00 lakhs. For repayment, accused issued cheque dated 8.7.2004for Rs.1.00 lakh in favour of complainant, drawn on Bombay Mercantile Cooperative Bank Ltd., Branch Aurangabad. However, when the cheque was presented by the complainant in the bank for encashment, the same was dishonoured. The complainant, therefore, issued notice to Respondent No. 2 demanding the amount paid, but the amount was not paid and, therefore, complaint was filed against accused. 3. The learned Magistrate, in paragraph 14 onwards of his judgment, considered various circumstances brought on record. It is stated by 3 learned Magistrate that on 17.5.2004, father of the accused expired and, therefore, accused borrowed amount of Rs.1.00 lakh from complainant. 4. It was suggested to the complainant that on 17.5.2004 the accused was busy in last rites of his father and thus could not have approached the complainant, but the suggestion was denied. The learned Magistrate observed that when father had died, naturally the accused would busy in the last rites and thus would not spare time to approach someone and demand Rs.1.00 lakh. It is also pertinent to note that the accused was not relative, classmate or childhood friend of the complainant and, therefore, demand and payment of Rs. 1.00 lakh is not accepted by the trial court. Moreover, the complainant has not explained as to why Rs.1.00 lakh were required by the accused, whose father died on that day. For funeral or last rites, amount of Rs.1.00 lakh is not required. Therefore, some 4 explanation should have come forward from the complainant to prove as to what was the need of that much amount for the accused. 5. The learned Magistrate in paragraph 15 of his judgment, has further observed that the complainant in his cross examination admitted that the accused had given him Rs.18,500/=. Suggestion was given to the complainant that the accused had obtained Rs. 20,000/= from one Ashok Wagh and on the say of said Ashok Wagh, accused had paid Rs.18500 to the complainant. As per the accused, he was in need of Rs. 20,000/= and, therefore, he had taken that amount from said Shri Ashok Wagh. Although the complainant denied this suggestion, he admitted that amount of Rs.18500 out of Rs.1.00 lakh, was paid by accused to him. In his evidence or complaint, the complainant did not state that he had already received Rs. 18500/= from the accused. The question arises when the part of the amount of Rs.1.00 lakh was paid by accused to 5 complainant, why cheque for full amount of Rs.1.00 lakh was given. 6. In paragraph 16 of the judgment, the learned Magistrate has further discussed that the complainant was working as a driver in the State Transport Corporation and earning Rs. 10,000/= per month and that the complainant stated that he had arranged Rs.1.00 lakh from his relatives and paid the same to the accused. However, reading of the complaint shows that when the accused approached the complainant and requested for hand loan, the amount was paid to him. The complainant neither in the complaint nor in affidavit in lieu of examination in chief stated that he had arranged for the amount. In these circumstances, evidence of the complainant was rejected. The complainant has examined himself and his wife as witness. 7. On perusal of the judgment, it appears that the reasons given by the 6 learned Magistrate for acquittal of the accused are proper and convincing. In the circumstances this is not a case for for grant of leave to file appeal. 8. Application is, therefore, rejected. Date:24/11/2009 (P.R.BORKAR, J.) pnd/criap3762.09