1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3301 OF 2009 Kantaprasad Yadav ...Applicant/ Orig.Appellant/ Orig.Complainant vs. Lalta Prasad Ramkhelvam Yadav & Anr. ...Respondents/ Resp.No.1-Orig. Accused Mr.A.M. Saraogi for the applicant. Mr.Arjun S. Kode with Mr.Sharad Kale for Respondent No.1. Mrs.P.P. Bhosale, APP for the State. CORAM : V.M. KANADE, J. DATED : MARCH 19, 2010 P.C. :- 1 Heard Counsel for the applicant and Counsel for the respondent. 2 This application for leave to file appeal is filed by the original complainant challenging the 2 judgment and order passed by the Metropolitan Magistrate, 7th Court, Dadar, Mumbai, who was pleased to dismiss the complaint and acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The applicant and the respondent accused are real brothers. 3 It is the case of the applicant that the accused had issued a cheque for a sum of Rs. 1,75,000/- drawn on Union Bank of India, Byculla, Mumbai, towards the discharge of his legal liability and the said cheque was returned unpaid. Though a demand notice was sent by the complainant, the respondent did not make the said payment of the amount of the cheque. 4 Counsel for the complainant submitted that the trial court had erred in recording the finding that the cheque was not issued towards discharge of his liability. The learned Counsel submitted that the accused had sold a gala for an amount of Rs.20 3 lakhs and that the complainant had 50% share in the said gala and therefore, the accused was liable to pay him Rs.10 lakhs and the said cheque of Rs. 1,75,000/- was paid towards the discharge of the said liability. The learned Counsel for the applicant invited my attention to the judgment and order of the trial court and also the evidence which was adduced by the complainant and by the respondent and it was submitted that the finding recorded by the trial court was incorrect. 5 On the other hand, Counsel for the respondent-accused supported the judgment of the trial court. He submitted that the trial court had observed that the initial burden had been discharged by the accused by producing documentary evidence and by making relevant suggestions in cross-examination of the complainant. 6 I have heard both the learned Counsel at length. In my view, there is no reason to interfere 4 with the finding recorded by the trial court. It is well settled position in law that the High Court while exercising its jurisdiction under Section 378 cannot substitute its own view to the view taken by the trial court. The High Court is expected to ensure that the view of the trial court is a probable view. Once the court comes to that conclusion, then it is not expected that the High Court should interfere with the finding recorded by the trial court. In the present case, the accused had produced the relevant documents on record to show that the case of the complainant that he had 50% share in the gala is not correct. He has produced the partnership deed, the purchase deed in respect of the gala to prove that the complainant only had 25% share in the said property. He had also produced a sale deed of the said gala wherein the sale price of the gala is shown as Rs.7 lakhs. He has also established that 25% share of the complainant which comes to Rs.1,75,000/- has been paid by the accused to the complainant. 5 7 On the other hand, the complainant did not establish that the gala was sold for a total consideration of Rs.20 lakhs or that he had 50% share in the said gala. The trial court also after perusing the cheque which was dishonoured has come to the conclusion that the said cheque though it was signed by the accused in Hindi was later on filled in probably by the complainant with the assistant of some other person and the words and the figures were written in English, there were some alterations also found on the said cheque. Under these circumstances, the court has disbelieved the testimony of the complainant that it was given towards discharge of liability of the accused. The trial court has, therefore, further observed that the cheque probably came into possession of the complainant and was later on misused by him. Taking into consideration the entire set of circumstances, in my view, the trial court was justified in recording the said finding. Under these circumstances, I am of the view 6 that no case is made out by the applicant for grant of leave. 8 Leave is refused. The appeal does not survive. (V.M. KANADE, J.)