1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4554 OF 2009 Mukta w/o Baburao Dubewar, Aged 43 years, Occupation Household, Resident of Bhagya Nagar, Ahmedpur, Taluka Ahmedpur, District Latur Applicant V E R S U S Sakharbai Bhagwanrao More, Aged Major, Occupation Service (ANM) Government Hospital Almala, Taluka Ausa, District Latur. Respondent Mr. J.R. Patil, Advocate for the applicant Mr. M.L. Dharashire, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 28thApril, 2010 Per Court : 1. This is an application seeking special leave to file the appeal against acquittal. 2. The applicant was complainant in the lower Court. She filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent. It was her case that she lent Rs.6,00,000/- on 30th March, 2007, to the respondent for business purpose. She said, the respondent promised to repay the amount within six months. She said, after six months, on 20th September, 2007, the cheque in question was given to her. The cheque failed, and therefore, following the usual and statutory formalities, the complaint was lodged. 3. The respondent took up several defences; first was that there was no transaction between the parties; second, that the cheque in question was lost by her while she was traveling from Solapur to Latur. 2 4. In the cross-examination, the respondent tried to bring on record that the applicant could not have raised Rs.6,00,000/-, in cash, on 30th March, 2007. In order to explore this line of cross- examination, several questions were put to the applicant, and the applicant stated that she has business of Millinium Service. She, however, did not explain, as to what income she derived from such business. She mostly relied on her husband’s business in grains. It is her case that her husband buys grains in quantity when the prices are low. She said that, after the prices increased, her husband sells the stock. She also stated that her husband has a shop at Ahmedpur, and that, her husband owns an agricultural land admeasuring 6 acres. She stated that on the day when the loan was given, she had in her house cash of Rs.5,00,000/-, and she said, she had withdrawn Rs. 1,00,000/- from L.I.C., a few days back. But, she did not produce any document showing withdrawal of amount of Rs.1,00,000/-. The learned Judge of the lower Court rightly held that a person in the position of the applicant, would not be able to raise Rs.6,00,000/- in cash and I agree to this conclusion. It is thus clear that the respondent / accused could prove that there was no possibility of disbursement of loan of Rs.6,00,000/-. So, it is clear that the presumption arising from the cheque in question is squarely rebutted. In view of this, the other defences of the respondent that the statutory notice under Section 138 (b) was not served on her, the cheque in question was lost in transit and that the cheque was misused by the applicant would fade into insignificance. The Judgment of acquittal is not assailable. Thus, the application seeking special leave is refused. 5. In view of above discussion, Criminal Application No. 4555 of 2009 is dismissed. (A.V. NIRGUDE, J.) srm/criapln/4555/09 3