( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4137 OF 2010 Mahadev Shankar Chande APPLICANT VERSUS The State of Maharashtra & another RESPONDENTS .... Mr. G.G. Suryawanshi, advocate for the applicant. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th October, 2010] PER COURT : 1. The application is filed under section 438 of the Criminal Procedure Code. 2. The applicant was Manager of Vishnunagar office at Basmat and the complainant is Branch Manager of the Finance Branch of Gramin Kutta Finance Company. The allegation is that the Finance Company used to lend money at interest and used to recover the loan amount with 12 per cent interest at end of the week. The FIR shows that on 24th May, 2010, the complainant - Finance Manager proceeded on long leave. He had signed two (2) cheques which were given in custody of the cashier of the Branch at Bamat. The applicant informed the casher on 27-07-2010 that he has received telephonic message ( 2 ) from the Head Office for transfer of the cash amount to the office and, therefore, demanded the cheque-book. The cashier gave the cheque-book to the applicant, but within period of about one (1) hour, the Branch Office did not receive any email instructions and, therefore, the cashier obtained back the cheque-book from the applicant. It appears that the applicant allegedly removed one (1) of the cheques and got the cheque encashed by scribing an amount of Rs. five (5) lacs thereon. The cheque was encashed on 30th July, 2010. The complainant alleges that soon after encashment of the cheque, the applicant borrowed his motorcycle at about 1 p.m. and left the office under the pretext that he had to attend some work at Nanded. The applicant did not go back to the office. The complainant verified the statements with the state Bank of India, Branch at Basmat on 02-08-2010 and noticed that the applicant had withdrawn the amount from the account. Thereafter, he lodged the FIR. 3. The learned advocate for the applicant would submit that the cheque-book was in custody of the cashier i.e. Santosh Sakarkar and the applicant was not at all concerned with the transaction. He would submit that the applicant is likely to be arrested without any substantial evidence against ( 3 ) him. He would submit, therefore, that the applicant deserves protection under section 438 of the Criminal Procedure Code. I do not agree. There is prima facie evidence to show that for a short period of about one (1) hour, applicant obtained custody of the cheque-book from the cashier under pretext that transfer of cash was to be effected as per the telephonic instructions of the Head Office of the Finance Company. No such instructions were received on that day. It is obvious, prima facie, that the applicant bluffed the cashier and obtained temporary custody of the cheque-book. It is also noticed by the learned Sessions Judge that the statement of the Bank Officer revealed that the applicant had withdrawn the amount from the CC account of the Company by encashing the cheque in question. Thus, there is a prima facie evidence to infer that the applicant dishonestly obtained the cheque, got it encashed and fled away from the Branch Office with some ulterior motive. His conduct that he did not return to the office is also eloquent. Under the circumstances, no prima facie case is made out. The application is dismissed. [V.R. KINGAONKAR] JUDGE NPJ/criapln4137-10 ( 4 )