1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4735/2010 Vaishali Subhash Khot Applicant V E R S U S Ganesh Tarachand Daulanpure. Respondent =================================== Shri A.R.Rathod , Advocate for applicant. Shri B.A.Shengle ,Advocate for the respondent. =================================== CORAM : SHRIHARI P. DAVARE, J. DATE : 29 th JUNE, 2011. ========= PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant (original claimant) seeking leave to file appeal challenging the judgment and order of acquittal dated 20.09.2010, rendered by learned Judicial Magistrate First Class, Aurangabad in S.C.C.No.9029/2007, thereby acquitting the respondent/original accused for the offence p/u/s 138 of Negotiable Instruments Act. [The parties herein after are 2 referred to as per their original status i.e. ‘complainant’ and ‘accused’] 3. I have perused the impugned judgment dated 20.09.2010 with the assistance of learned counsel for the parties. 4. Briefly stated the case of the complainant is as follows :- The complainant contends that she is acquainted with the accused since her husband had friendly relations with accused and they both were on visiting terms. Complainant also contends that accused was in need of money for making payment to the Kasliwal Developers and, therefore, he approached the complainant and asked for hand loan. Accordingly, taking into consideration financial difficulty of the accused, complainant advanced hand loan of Rs.1,00,000/-{Rs.one lac} to the accused. Accused promised to repay said hand loan amount within three months. However, accused did not make the payment of the hand loan amount within said period. Hence, complainant demanded said amount from the accused from time to time. Ultimately on 6.7.2007, accused issued cheque no.009580 for Rs.1.00 lac to 3 complainant drawn on Devgiri Nagari Cooperative Bank Ltd. Jawahar colony Branch Aurangabad. The complainant presented said cheque for encashment purpose through H.D.F.C. bank on 6.9.2007. However, said cheque was dishonoured and returned unpaid on 3.10.2007 along with bank return memo. Hence, accused asked the complainant to present said cheque again. Accordingly, complainant again presented said cheque for encashment on 3.10.2007, but same was again dishonored and returned unpaid with bank return memo with the endorsement “Not arranged for”. Thereafter, the complainant issued legal demand notice to accused on 16.10.2007. But the notice of Registered Post A.D. was returned unserved with the endorsement “Not claimed”. It is the contention of the complainant that UPC notice was served upon the accused however accused failed to comply with the said notice and not repaid the amount to the complainant within stipulated period. Hence, complainant filed present complaint against the accused. Accused appeared in the said complaint and his plea was recorded. He pleaded not guilty and claimed to be tried. 4 5. To substantiate case of the complainant, complainant examined as many as three witnesses i.e. complainant herself Vaishali at Exh.17, her husband Subhash Khot Exh.29 and one Bank employee namely Nitesh Harakchand Pahate at Exh.35. Moreover, complainant also produced documentary evidence such as disputed cheque in question Exh.19, cheque return memo at Exh.20, 21, 22 ,23 and postal envelope Exh.25. Accordingly, considering the oral and documentary evidence adduced/produced by the complainant, initial presumption under section 118 (a) and 139 of the Negotiable Instruments Act is in favour of the complainant that the accused issued disputed cheque in question to the complainant towards discharge of liability. However, said presumption is rebuttable and standard of proof required there for is on preponderance of probability. Hence, question arises whether the accused has rebutted said presumption on preponderance of probability by probabilizing his defence. In the said context, it is necessary to consider the defence of accused which is put forth by the him through the cross examination of the complainant as well as 5 in the statement of accused recorded under section 313 of Code of Criminal Procedure, since he did not examine himself nor examined any defence witness. Accordingly, the defence of the accused is that he has given the disputed cheque in question towards the complainant’s husband as security to the commission of flat booking and complainant mis-used said blank signed cheque and filed false complaint against him. Pertinently, learned trial court has observed in the impugned judgment in paragraph No.25 that complainant herself during her cross examination conceded that, accused had issued cheque to her husband. Moreover, CW 2 Subhash Khot- husband of complainant in his examination-in-chief himself stated that amount of Rs.1,50,000/- was due against accused and his partners towards payment of commission in respect of booking. Hence, learned trial court has observed that from the above material on record, it becomes clear that accused has not issued disputed cheque in question to the complainant, and hence, complainant cannot be termed as ‘drawee’ of the said cheque. It is further observed by the learned trial court that on the other hand 6 aforesaid material on record strengthened the defence raised by the accused. Moreover, it is also observed by learned trial court in paragraph No.27 of the impugned judgment that as came on record, during complainant’s cross examination, the complainant even does not recall, whether she was present at the time when accused had issued cheque to her husband. It is also observed by the Learned trial court in paragraph No.31 of the impugned judgment that accused has very successfully rebutted the presumption under section 139 of the Negotiable Instruments Act and probabilised that cheque in question was issued by him as a security to the husband of complainant, for payment of commission, and apparently, there is no flaw in the said observation and finding given by the learned trial court. 6. Accordingly, it is apparent that accused has probabilized his defence and rebutted presumption on preponderance of probability. Hence, onus shifted upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused and 7 accused issued disputed cheque in question to the complainant towards discharge of legally enforceable debt partly or in whole. However, the complainant has not adduced any cogent and convincing evidence in that respect. Moreover, complainant has not got executed any document from the accused in respect of said hand loan. So also, complainant also has not produced any account extract. Hence, it is apparently clear that the complainant has failed to discharge said burden and failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt against accused and accused issued disputed cheque in question to the complainant towards discharge of legally enforceable debt/liability partly or in whole. 7. In the circumstances, after scrutinizing and appreciating the evidence, the view adopted by the learned trial court, while acquitting the accused is a possible view and same does not appear to be perverse and reasoning given there for cannot be faulted with and therefore, no interference is called for therein under appellate jurisdiction. Hence, present application deserves to be 8 rejected. 8. In the result, present application being sans merits stand dismissed. Leave to file appeal is refused. Present application is disposed of accordingly. ( SHRIHARI P. DAVARE ) JUDGE aaa/4735.10 ******