1 fmp Cri. Appln. No.653/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.653 OF 2011 Smt. Minabai Kishor Patil ... APPLICANT VERSUS Smt. Sumanbai Devaji Marathe ... RESPONDENT ..... Shri A.S. Sawant, Advocate for the applicant Shri S.S. Patil, Advocate for the respondent ..... CORAM : U.D. SALVI, J. DATED : 27th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicant is seeking leave to prefer an appeal against the judgment and order of acquittal of the respondent/accused under Section 138 of the Negotiable Instruments Act, recorded by the Judicial Magistrate, First Class, Court No.6, Dhule in S.T.C.C. No.959/2006 on 19.10.2010. 3. According to the applicant/ complainant, the cheque in question was issued by the respondent/ accused for repayment of the hand loan of Rs.6,20,000/- and the said cheque was 2 fmp Cri. Appln. No.653/2011 dishonoured when presented to the Bank for want of sufficient funds in the Account of the respondent/ accused. The applicant examined herself and her daughter to substantiate the case. 4. The respondent/ accused examined an official from State Transport Corporation and her son-in-law Ishwar Haribhau Khote (Marathe) to counter the complainant’s evidence. Without examining herself, she merely tendered an affidavit during her examination under Section 313 of the Criminal Procedure Code. The accused stated that the complainant had misused a blank cheque issued by her as a security for repayment of Rs.5000/-, and the said money was repaid in February 2005, but the cheque was not returned on one pretext or another and was ultimately used for creating a false case that it was issued towards the repayment of the loan of Rs.6,20,000/- secured by her for arranging a job for her son-in-law. The accused further revealed that her son-in-law Ishwar Khote was running an institution and was self employed and there was no occasion for him to seek job. She further disclosed that the complainant was not in position to raise funds to the tune of Rs.6,00,000/- and above as she had limited monetary resources, and that the complainant indulges in unauthorised money lending and files false cases of similar nature against the needy women. She also made reference to the complaints lodged against the 3 fmp Cri. Appln. No.653/2011 complainant with Superintendent of Police, Dhule and the District Deputy Registrar, Cooperative Societies, Dhule regarding unauthorised money lending business. 5. D.W.1 Raghunath Savkare, Accounts Officer from State Transport Corporation placed before the Court the facts concerning the retirement benefits accrued to the deceased husband of the complainant as a Conductor with State Transport Corporation. His evidence reveals that an amount of Rs.2,70,289/- was received by the complainant as the retirement benefits due to her deceased husband. He could not reveal any other fact in his evidence. D.W.2 Ishwar Khote lend support to the defence version that he was not in need of any employment. His cross-examination has not done any damage to this fact revealed in his evidence. 6. Cross-examination of the complainant revealed a fact that she had no source of income other than her husband’s pension of Rs.2480/- per month and her tailoring business. Interestingly, she deposed that, she had received an amount of Rs.7,20,000/- from State Transport Corporation as dues of her deceased husband contrary to D.W.1 Savkare. However, nothing in support of this fact was brought on record through the cross-examination of D.W.1 Raghunath Savkare, Accounts Officer of the State Transport Corporation. She also admitted in the cross-examination that she 4 fmp Cri. Appln. No.653/2011 had no contemporaneous record to show that an amount of Rs. 6,20,000/- was given as hand loan to the accused. Cross- examination of P.W. 2 Smita Patil, daughter of the complainant, who claimed to have witnessed the transaction of the hand loan, averred in her cross-examination that she was not in position to explain from where her mother had brought such big amount and she did not known for what purposes the loan was given to the accused. Her cross-examination further revealed that her mother had lodged two cases, against one Dada Pathak and Mrs. Rupali Birari under Section 138 of the Negotiable Instruments Act, in respect of the cheques of Rs.3,50,000/- and Rs.5,70,000/- issued by the said persons respectively. She admitted that none from their household was paying income tax and was not a PAN Card holder. 7. Learned Advocate for the applicant/ submitted that the issue of raising funds for giving hand loan was unimportant and the respondent/ accused had not given reply to the notice of demand raising a defence as is now being raised and, therefore, the defence of the accused is baseless. 8. It cannot be, however, forgotten that the accused is facing a criminal case and is not a contestant in civil case for recovery of money. Though law raises a presumption in favour of the holder of the cheque in due course, it is open to the contesting 5 fmp Cri. Appln. No.653/2011 party to rebut such presumption either through the evidence of the complainant or his evidence or both, and the standard of evidence required for rebutting the presumption is not what is required for proving the case beyond reasonable doubt but sufficient enough to tilt the balance on the weight of the preponderance of probabilities. In the instant case, the respondent/ accused, by cross-examination of the complainant and her daughter, not only brought under cloud of suspicion the fact of holding funds to a tune of Rs.6,20,000/- for giving him as a hand loan, but has also brought forth material to probabalize the defence that the complainant was indulging in unauthorised money lending business at the material time. To outweigh the complainant’s evidence, the accused examined the Accounts Officer of the State Transport Corporation and her son-in- law Ishwar Khote. Learned trial Court was, therefore, justified in acquitting the accused. Leave is, therefore, refused. Criminal Application is finally disposed of. ( U.D. SALVI, J. ) fmp/cri653.11