1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1394/2010 Parasram Dharma Khalane Applicant V E R S U S Sunil Bhaskarrao Shitole Respondent. Shri Shailesh P. Brahme, Advocate for applicant. .... CORAM : SHRIHARI P. DAVARE, J. DATE : 13TH JULY, 2010. ..... PER COURT : 1. Heard learned counsel for the applicant. 2. This is an application preferred by the applicant ( original complainant ),seeking leave to file appeal against the judgment and order of acquittal dated 15.2.2010 passed by learned Judicial Magistrate First Class, Sakri in Criminal Case No.582/2006, acquitting the respondent / original accused for the offence punishable under section 138 of Negotiable Instruments Act. 3. I have perused the judgment and order of acquittal dated 2 15.2.2010 with the assistance of learned counsel for the applicant. 4. Respondent/original accused faced trial under summary criminal case No.582/2006 for the offence under section 138 of Negotiable Instruments Act. In short, the case of the complainant is that land bearing gat No.52, mauje Aklad Tq. & Dist. Dhule admeasuring about 34 Aar was sold by the applicant to the respondent for the purpose of his hotel business on 4.3.2006 for the consideration of Rs.87,000/- by way of registered sale deed. It is alleged by the applicant that respondent paid Rs.37,000/- in advance towards said transaction and balance amount of Rs.50,000/- was paid by him to applicant by way of cheque on 3.4.2006. Applicant presented said cheque for encashment on 10.4.2006 however, said cheque was dishonoured and returned unpaid with the endorsement ‘insufficient Balance’. The applicant further presented said cheque for encashment on 22.5.2006 but the said cheque was again returned unpaid with the endorsement that “Payment stopped by the drawer.’ Thereafter applicant issued notice dated 22.6.2006 to the respondent through advocate but it is alleged that respondent did not comply with the requisitions contained in the said notice. Hence, after observing necessary formalities applicant filed complaint against respondent under section 138 of N.I. Act. 5. Respondent appeared in the said matter. Complainant 3 examined himself but the accused did not examine himself nor examined any other witness but put forth his defence through cross examination of the complainant. The defence of the accused was also raised in statement under Section 313 of Code of Criminal Procedure that cheque in question was issued towards the security and same was deceived by the applicant and filed false complaint on the basis of the said cheque. 6. After scrutinizing and appreciating evidence the learned trial judge arrived to the conclusion that said cheque was not issued towards legally enforceable liability and did not hold the accused guilty and acquitted him. 7. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the applicant has preferred present application seeking leave to file appeal against the same. 8. It appears that learned trial judge has observed in the impugned judgment that if according to the version of the applicant, the respondent has issued cheque of Rs.50,000/- towards balance consideration of the sale deed, there was no impediment to the applicant to obtain writing to that effect from the respondent. Even, no mention thereof has been slightly made in the sale deed that respondent issued cheque of Rs.50,000/- towards payment of the balance amount of said sale deed. It is further observed that in fact said sale 4 deed discloses that applicant received entire amount of consideration of Rs. 87,000/- in cash from the respondent and there was no complaint in respect of the receipt of the consideration. Hence learned trial judge has observed that accused has probabilized his defence in the statement under section 313 of Code of Criminal Procedure but the applicant has failed to establish that cheque in question was issued towards legally enforceable liability and consequently did not hold the accused guilty and acquitted him. 9. Having comprehensive view of the matter, it appears that view adopted by the learned trial judge after analyzing evidence appears to be probable view and same does not appear to be perverse and therefore no interference there in is warranted under the appellate jurisdiction. 10. In the result, present application being sans merit, stands dismissed and leave to file appeal stands refused. ( SHRIHARI P. DAVARE ) JUDGE ..... AAA/1394.10