1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 401 OF 2009 Bharat Vishnupant Ghogare APPLICANT VERSUS Anant Wamanrao Shinde RESPONDENT ..... Shri M.M. Patil, Advocate h/f Shri Dhananjay Mane, Advocate for the applicant Shri R.D. Sanap, Advocate for respondent ..... CORAM : U.D. SALVI, J. DATED : 7 th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The accused Anant Shinde, an agriculturist from Village Ekurka, Tq. Kallamb, Dist. Osmanabad, has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act,1881, by the learned Judicial Magistrate, First Class, Kallamb, Dist. Osmanabad vide Judgment and Order dated 6-12-2008 in R.C.C. No. 215/1998. Complainan-Bharat Ghogare of the same village has moved present application for leave to prefer an appeal against the said Judgment and Order of acquittal. 2 3. Before the Trial Court the complainant examined himself and none-else though he had named two more persons as the witnesses to the alleged transaction of hand loan of Rs. 50,000/- given by him to the accused on 9-10-1996, and for repayment of which, the accused allegedly issued the cheque in question bearing No. 991115, dated 01-06-1998 for Rs. 50,000/- drawn on the Osmanabad District Central Cooperative Bank Ltd., Osmanabad in favour of the complainant (Exhibit 35). The same was dis-honored for want of sufficient funds in the account on which the cheque was drawn by the accused. 4. Despite service of demand notice dated 11-06-1998, the complainant averred, the accused neither replied the notice nor made the payment of Rs. 50,000/-, thereby, incurring the Criminal liability under Section 138 of Negotiable Instruments Act, 1881. 5. The learned Trial Court after considering the evidence and submissions made by the rival parties, particularly the ratio laid down in a case of ( Krishna Janardhan Bhat V. Dattatraya G. Hedge, reported in AIR, 2008, Supreme Court 1325) found merit in the defence raised by the accused in respect of the alleged transaction of hand loan. The learned Trial Court found it difficult to believe that a transaction of hand loan involving huge amount of 3 Rs. 50,000/- had taken place, particularly, for the reason that the complainant had not examined any of the witnesses to the actual transaction, and cross-examination of the complainant had brought to light the previous financial transaction with the accused in 1995, which had come to an end. 6. The learned counsel for the applicant, submits that there has been offence of cheating punishable under section 420 of the Indian Penal Code, 1860 coupled with the offence under Negotiable Instruments Act, in as much as the accused had issued a cheque knowing that there was no amount in the account held with the Osmanabad District Central Co-operative Bank Ltd., Osmanabad in his name and in the name of Village Industry Officer (Gramudyog Adhikari) Osmanabad. As regards this submission, it would be of interest to note that the process was issued under Section 138 of the Negotiable Instruments Act 1881, and the substance of accusation were made accordingly. Nevertheless it can be seen from the evidence of the complainant that the cheque was not issued at the time of alleged loan transaction, but the post dated cheque was issued on the demand made for repayment of the alleged hand loan. Thus there has been no cheating within the definition of “cheating” under Section 420 of the Indian Penal Code, 1860. 4 7. The learned Advocate for the applicant, further argued that there is a presumption under Section 139 of the Negotiable Instruments Act, 1881,which is in favour of the complainant. Except the suggestion that the complainant was a money lender. there is hardly anything in the cross-examination to probablise the defence, that at the material time the complainant was not in a position to extend the hand loan of Rs. 50,000/-. In fact, the suggestion that he was a money lender is counter productive to the defence challenging the capability of the complainant to extend hand loan. 8. Leave is granted. 6. Appeal admitted. Learned counsel for respondent waives service of notice of appeal. 7. Paper book be prepared. 8. Action under Section 390 of Criminal Procedure Code to follow. ( U.D. SALVI, J. ) SDM* September-11