1 Cri.A.1597.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1597 OF 2010 Shri Gurukrupa Trading Company Through Dattatrya S/o Vitthalrao Kurade,Age: 38 years, Occupation Business R/o Madhi, Tq. Kopargaon, District Ahmednagar ...APPLICANT. VERSUS 1. Gulab S/o Ganpat Gadekar Age : 35 Years, Occup.: Agril., R/o Ukkalgaon, Tq. Shrirampur, District Ahmednagar. 2. The State of Maharashtra ...RESPONDENTS. ... Shri.S.B.Ghute,Advocate for Applicant(Original Complainant) Shri.A.D.Shinde,Advocate for Respondent No.1 (Original Accused) Smt. Y.M.Kshirsagar, A.P.P. for Respondent No.2 ... CORAM: SHRIHARI P.DAVARE, J. DATE : 15TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant - Original complainant seeking leave to 2 Cri.A.1597.10 file appeal, challenging the Judgment and order dated 4th February,2010, rendered by the learned Judicial Magistrate First Class - 2, Kopargaon, in Summary Criminal Case No. 956 of 2002, thereby acquitting respondent No.1 - original accused for the offence punishable under section 138 of the Negotiable Instruments Act. BRIEFLY STATED CASE OF THE PROSECUTION IS AS FOLLOWS: 3. The Complainant is carrying business of collection of milk and distribution of cattle food, and accused used to purchase cattle food from the complainant, and used to pay the amount thereof to the complainant from time to time. It is alleged that accused had purchased cattle food amounting to Rs.50,050/-(Rupees Fifty Thousand and Fifty only) from the complainant till October, 2001, and for repayment of the said amount accused issued two cheques bearing Nos.095008 for Rs. 33,800/-(Rupees Thirty Three Thousand Eight Hundred) and 272604 for Rs. 16,250/-(Rupees Sixteen Thousand Two Hundred Fifty), drawn on the 3 Cri.A.1597.10 Ahmednagar District Central Co-Operative Bank Ltd. Ahmednagar. According to the complainant, the said cheques, when presented for encashment purpose, were dishonoured and returned unpaid along with memos with endorsement “Insufficient Funds”. Hence, complainant sent legal notice dated 16.05.2002 to the accused, which was received by the accused on 20.05.2002. However, accused failed to comply with the requisitions contained in the said notice, hence, the complainant filed complaint before Judicial Magistrate First Class, Ahmednagar, under section 138 of the Negotiable Instruments Act. 4. Process came to be issued under section 138 of the Negotiable Instruments Act, and accused appeared and pleaded not guilty. 5. While adducing the evidence, the complainant examined himself, but did not examine any other witness on his behalf, whereas accused did not examine himself, but put forth his defence through 4 Cri.A.1597.10 cross examination of the complainant and also through his statement recorded under section 313 of the Code of Criminal Procedure. 6. After considering oral and documentary evidence on record adduced/produced by the parties, and also after considering rival submissions advanced by the learned counsel for the parties, the learned Judicial Magistrate First Class, Kopargaon, acquitted the accused for the offence punishable under section 138 of the Negotiable instruments Act, by Judgment and order dated 4th February, 2010. 7. Being aggrieved and dissatisfied by the said Judgment and order of acquittal, dated 4th February, 2010, original complainant has preferred present application seeking leave to file an appeal challenging the same. 8. At the outset, complainant produced both cheques in question at Exhibits 28 and 29, as well 5 Cri.A.1597.10 as Bank memos thereof at Exhibits 30 and 31 and copy of demand notice at Exhibit 32, postal receipt thereof at Exhibit 33 and acknowledgment thereof at Exhibit 34; whereas during the cross examination of the complainant, accused produced three receipts of payment at Exhibits 39, 40 and 41. Considering the aforesaid documents and the oral evidence of the complainant, there is no dispute that initial presumption under section 118 and 139 of the Negotiable Instruments Act, in respect of issuance of cheques in question by accused is in favour of complainant, that the accused issued the said cheques towards the discharge of debt or liability. 9. However, respondent No.1 - accused put forth his defence through cross examination of the complainant and also through his statement recorded under section 313 of the Code of Criminal Procedure, and defence of the accused is that the complainant obtained blank cheques, towards security which bears his signatures and same were 6 Cri.A.1597.10 misused by the complainant. It is also the defence of the accused that he has repaid the amount to the complainant and produced receipts thereof at Exhibits 39, 40 and 41 and he does not owe any amount to the complainant, as alleged. Since complainant could not give proper explanation regarding said receipts, more particularly Exhibits 40 and 41, it is apparent that accused has rebutted presumption on preponderance of probabilities, and therefore, burden was shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally recoverable debt/liability, and cheques in question were issued by the accused towards repayment of legally enforceable debt/liability. 10. However, it is apparent that complainant could not prove beyond reasonable doubt that for which transaction the cheques in question were issued by the accused and what was the date of transaction, and the said cheques in question 7 Cri.A.1597.10 belonged to which delivery of goods. Hence, it is apparently clear that complainant has failed to discharge the said burden beyond reasonable doubt. 11. Hence, learned trial Court has rightly acquitted the accused for the offence punishable under section 138 of the Negotiable Instruments Act, and reasoning adopted therefor can not be faulted with. 12. Besides that, the view adopted by the learned trial Court, after assessing and analyzing the evidence before it, is a probable view and same does not appear to be perverse, and hence, no interference therein is warranted, in the appellate jurisdiction. 13. In the result, present application bears no substance, and therefore, same stands dismissed and leave to file appeal stands refused. Sd/- [SHRIHARI P.DAVARE, J.] MTK 8 Cri.A.1597.10