1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 166 OF 2009 WITH CRIMINAL APPEAL ST. NO. 29 OF 2009 Anusayabai w/o Ganpatrao Nachapalle ...Applicant VERSUS Salim s/o Mohamandpasha Shaikh ...Respondent ..... Shri M.L.Dharashive, advocate for applicant Shri D.M.Autade, A.P.P. for sole respondent. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 3 rd August, 2010 PER COURT : 1 Heard Shri M.L.Dharashive, advocate for applicant and Shri D.M.Autade, A.P.P. for sole respondent. 2 This is an application preferred by the applicant (original complainant) seeking leave to file appeal against the judgment and order of acquittal, dated 5.9.2007, passed by 6 th Judicial Magistrate, First Class, Latur in S.T.C.C. No. 3360 of 2003 acquitting the 2 respondent (original accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881. 3 I have perused the impugned judgment and order of acquittal dated 5.9.2007 as well as the record and proceedings with the assistance of the learned counsel for the parties. 4 Apparently, the accused faced the trial for the offence under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of cheque dated 11.1.2003 for Rs.34,500/- allegedly issued by the accused to the complainant towards the repayment of hand loan. However, it appears that although it is the contention of the complainant that he handed over the amount of Rs.34,500/- to the accused for building the body of the truck, there is no oral or documentary evidence adduced or produced by the complainant in that respect. 5 Apparently, the complainant examined three witnesses in support of her contention; whereas the accused did not examine any witness, but put forth his defence through the statement recorded under Section 313 of the Code of Criminal Procedure. The defence of the accused is that the complainant’s son used to conduct Bishi and cheque in question was issued by the accused to her son towards the security of the said Bishi, as his father was member 3 thereof, but the said Bishi was closed down and the complainant’s son misused the cheque which was given towards the security. Apparently, the accused has probablised his defence, and therefore, burden was shifted upon the complainant to prove and establish that the cheque in question was issued towards the legally enforceable debt. However, the complainant admitted in her cross-examination that cheque in question was given to her by one Pasha Patel and same was handed over to her son and she was not present there and the said cheque has been given about one year back. She also stated that she was unable to state the cheque number and the name of the Bank, and accordingly, the complainant failed to discharge the said burden. Moreover, the complainant had filed Civil Suit No. 516 of 2004 against the respondent herein for the recovery of the said amount of Rs.34,500/-, but same was dismissed by learned Joint Civil Judge, Senior Division, Latur on 10.4.2006 and certified copy of the said judgment has been produced at Exh.30. 6 After considering the oral and documentary evidence on record, the learned Trial Judge has come to the conclusion that the complainant failed to prove and establish that the cheque in question was issued towards legally enforceable debt, and consequently, held that accused is not guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881, and therefore, acquitted him, and the view adopted by the learned trial Judge is a possible view to be 4 adopted and reasoning given therefor appears to be sound and logical and same cannot be faulted with, as well as the view taken by the learned trial Judge does not appear to be perverse, and therefore, no interference therein is called for. 7 In the result, present application bears no substance, and therefore, same stands dismissed. Leave to file appeal stands refused. Criminal Appeal Stamp No. 29 of 2009 stands dismissed accordingly. R. and Ps. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap166.09