1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 477 OF 2010 Dr. Babasaheb Ambedkar Co-op. Sugar Factory Ltd., ..APPLICANT -VERSUS- The State of Maharashtra and another. ..RESPONDENTS ......... Mr. S.J. Salunke, advocate for the applicant Mr. N. H. Borade, A.G.P. for respondent no.1. Mr. S. T. Ghute, advocate for respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 31 st August, 2010. PER COURT : 1. This is an application seeking leave to file appeal. The complainant/applicant had filed private complaint case for the offence under Section 138 of the Negotiable Instruments Act. In the private complaint case bearing S.C.C. No.1115/2004, the learned Judicial Magistrate acquitted the respondent no.2. 2. The respondent no.2 had entered into an agreement for transportation of sugar cane from the factory premises of the sugar factory. The applicant sugar factory alleged that an amount of Rs.59,853/- was given to the respondent no.1 as advance amount, for repayment of which, the cheque in question was 2 issued by him. There is no dispute about the fact that the cheque was dishonoured. 3. The learned counsel for applicant would submit that the respondent took false defence regarding loss of cheque and misuse thereof. He would submit that burden of proof was on the respondent to prove as to how the defence is truth bearing. The agreement (Exh.41) does not refer to payment of advance amount for which the cheque has been issued. The version of Sushant Shivaji Lomate, who had filed affidavit (Exh.24) in support of complaint case indicates that wherever the amount of advance is given then it is so mentioned in the agreement. He also admits that such advance amount is given to the contractors through cheque. He admits that he had not signed any such agreement with the respondent for the year 2003-2004. He admits unequivocally that there is no document to show that an amount of Rs.59,853/- was given to the respondent at the relevant time in 2002-2003. The trial Court came to the conclusion that the complainant/applicant failed to prove the existing financial liability in lieu of which the alleged cheque was issued. The applicant failed to establish as to how the respondent was liable to pay the said amount shown in the cheque. It is for such reason, the acquittal was ordered. 3 4. On taking overall view of the matter, I find that this is not fit case in which leave to appeal should be granted because there is no basic infirmity in the appreciation of material. The application is disposed of. (V.R.KINGAONKAR) JUDGE gas/cri477.10