1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.2220 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Sachin Ashok Patil ...Applicant. v/s. Prakash Shripati Waghare & Anr. ...Respondents. Mr. Nagesh Y. Chavan , adv. For the Applicant. Mr. Shrikant Yadav, adv. For the Respondent No.1. Shri P.S.Hingorani, APP for the R.No.2. CORAM : J.H. BHATIA, J. DATED : MARCH 23, 2011. P.C. 1 Heard the learned counsel for the applicant and the respondent no.1 and perused the relevant documents. The applicant is original complainant, who had filed complaint under Section 138 of the Negotiable Instruments Act against the accused/respondent. According to the applicant, he had given an amount of Rs.50,000/- as hand loan because accused was in financial difficulty. He had agreed to repay the loan amount as soon as he would have funds in December, 2006. Accordingly, on 31.12.2006 accused issued a cheque of Rs.50,000/- in favour of the complainant. The cheque was presented to the drawee bank on two occasions and it was returned unpaid. In the month of June, 2007, 2 accused allegedly asked the complainant to deposit cheque again. Accordingly, the cheque was deposited and was returned unpaid with endorsement ‘Payment Stopped by the Drawer’ in spite of service of statutory notice, payment was not made. 2 According to the accused, complainant was a dealer and distributor of goods. For certain goods, accused was working as sub- dealer and was purchasing goods from the complainant and was also making the payments from time to time. According to him, in stead of deposits, he had given blank cheques as security to the complainant at the time of his appointment as sub-dealer. He stopped purchasing goods during the year 2005-2006 and thereafter, he has no dealings with the complainant. Being aggrieved by that, the complainant had misused blank cheques, which were given by the accused to the complainant as security. 3 The trial Court acquitted the accused and noted that complainant had admitted that the accused was working as his sub-dealer but had stated that without going through his account books and stock registers, he could not say when the accused had stopped making purchases from him. He also admitted that deposits were taken by the companies at the time of appointment of dealers. He denied that blank 3 cheques were given to him by the accused as security at the time of appointment of sub-dealer . He did not give date on which the accused had made a request for hand loan nor he stated on what date hand loan was given. He also did not produce any document or account books to show that he had given hand loan to the accused. The learned Trial Court also noted that though the cheque in question bears signature of the accused, the remaining contents appear to have been written in different handwriting and with different ink. It shows that blank cheque was taken and it was filled in later on. According to the trial Court, it provides corroboration to the plea of the accused. 4 The learned counsel for the applicant/complainant contended that non-production of documentary proof of loan itself is insufficient to displace the presumption against the accused and for this purpose, he relied upon Shree Hemant Pavel Gracias vs. Shree Socorro Santan Fernandes 2007 ALL MR (Cri) 3425. It is true that there is presumption of consideration when the cheque is issued. In the above referred authority, this Court had held that non production of documentary evidence of loan itself is insufficient to displace the presumption. In the present case, there are several factors noted above which go against the complainant and provides corroboration to the plea 4 of the accused. It is settled position of law that normally appellate Court will not interfere in the judgment and order of the acquittal unless the impugned order is per-se wrong, perverse or illegal nor appellate Court will interfere merely because different view is also possible on re- appreciation of the evidence. 5 Taking into consideration the facts and circumstances of the case and the legal position, no purpose will be served by granting leave to prefer appeal. 6 Therefore, this application stands dismissed. (J.H. BHATIA,J.)