1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1741 OF 2010 Balbhim Ramrao Jadhav. applicant-complainant versus Govindlal Dwarkadas Heda and another. respondent-accused. --------- Shri N.S. Kadam, Advocate, for the applicant. Shri M.B. Kolpe, Advocate for Respondent No. 1. -------- Coram : Shrihari P. Davare, J. Date : 16.03.2011. P. C. 01. This is an application preferred by the applicant-original complainant, seeking leave to file appeal challenging the judgment and order dated 9.12.2009, rendered by the learned Judicial Magistrate, First Class, 4th Court, Osmanabad, in S.C.C. No.598 of 2005, thereby acquitting the respondent-accused of the offence punishable under Section 138 of the Negotiable Instruments Act. The factual matrix of the case is as follows; 02. The complainant claims to be the owner of Jai Bhavani Petrol Pump, Karajkheda, on Latur-Tuljapur road. The accused is the resident of village Bembli and having jeep and tractor, and is the customer of the complainant and fills up diesel from the complainant's petrol pump. It is also claimed that the relations 2 between the accused and the complainant were cordial and of friendship. Since prior to 4-5 years, the accused has been filling up diesel from the petrol pump of the complainant and paying amount at the end of the month. 03. It is alleged that the daughter-in-law of the accused was ill and, therefore, for her treatment, he was in need of money and hence, complainant gave some amount to the accused who was already in due of some amount towards diesel charges, and as such, total dues recoverable from the accused were to the tune of Rs. 1,00,000/=. The complainant requested the accused to repay the said amount, whereupon the accused issued cheque dated 19.2.2005 bearing No.261858 for Rs.1,00,000/= drawn on the Osmanabad District Central Co-operative Bank, Branch Bembli, in favour of the complainant. However, when complainant presented said cheque for encashment, the same was dishonoured and returned unpaid with bank memo "funds insufficient in the account", on 17.3.2005. 04. Hence, complainant issued demand notice to the accused, on 28.3.2005, calling upon him to repay the cheque amount. It is alleged that the accused received the said notice on 1.4.2005, but failed to comply with the requisitions contained therein and, therefore, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act, before the court of Judicial Magistrate, First Class, Osmanabad, wherein process came to be issued against the accused, and he appeared in the matter, and his plea was recorded and he pleaded not guilty. 3 05. The complainant adduced oral evidence, as well as produced documentary evidence, whereas the accused did not adduce any oral evidence. After scrutinizing oral and documentary evidence, and also considering rival submissions advanced by learned counsel for the parties, the learned trial judge, by judgment and order dated 9.12.2009, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, and being aggrieved and dissatisfied by the said judgment and order of acquittal, the complainant has preferred present application seeking leave to file appeal against the same. 06. At the outset, to substantiate his case, the complainant examined himself, as well as one witness, namely, Bhalchandra Rawan Kallamkar. The complainant also produced the disputed cheque at Exhibit 49, bank return memo and letter at Exhibits 50 and 51, copy of demand notice at Exhibit 52 and acknowledgment thereof at Exh. 53. Considering the said documents, it is apparent that initial presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant that the accused issued the cheque in question towards discharge of debt/liability. 07. However, the question is whether the accused has rebutted the said presumption, by probabilizing his defence. The defence of the accused is that the cheque in question was lost and the complainant mis-used it, by fabricating the same. In the said context, letter dated 7.11.2003 issued by the accused to the 4 concerned Branch Manager, has been produced on record at Exh. 39, which discloses that the accused had informed to the bank about loss of cheque in question bearing No.261858, along with other cheques and the copy of the said letter bears the rubber stamp and signature of the bank manager. Hence, it is apparent that the accused has substantiated his stand, by issuing the said letter (Exh.39) to the concerned bank manager, and hence, he has probabilzed his defence, on preponderance of probability and rebutted the presumption raised against him under Section 118 and 139 of the Negotiable Instruments Act. 08. Since the accused has rebutted the said presumption as aforesaid, the burden of proof shifts upon the complainant and it is incumbent upon the complainant to prove beyond reasonable doubt, that the cheque in question was issued by the accused towards legally enforceable debt/liability. Accordingly, the complainant is required to prove that there existed legally enforceable debt recoverable from the accused. In the said context, learned trial court has observed that the complainant nowhere specifically stated in his complaint as to how much amount was given to the accused towards medical treatment of his daughter-in-law and how much amount was given to him, as hand loan, and for the first time, the complainant stated in his oral evidence that he gave Rs.84,000/= to the accused for the medical treatment of his daughter-in-law, which appears to be an improvement, since there is no pleading in the complaint in that respect. It is further observed that nowhere the complainant explained, from where did he bring such huge amount of Rs.1,00,000/=, as well as he failed to explain the exact amount of 5 dues towards hand loan and exact amount due towards diesel charges. It is observed by the learned trial judge that the complainant failed to prove and establish that the cheque in question was issued towards legally enforceable debt/liability, and the said reasoning cannot be faulted with. Accordingly, it is apparent that the complainant failed to prove and establish beyond reasonable doubt that the cheque in question was issued by the accused towards legally enforceable debt, and failed to discharge the burden shifted upon him. Accordingly, the reasoning adopted by learned trial court, while acquitting the accused; cannot be faulted with. 09. In the circumstances, it appears that the view adopted by the trial court, after scrutinizing and analyziing the evidence before it, is a probable view and it does not appear to be perverse and hence, no interference therein is warranted, in the appellate jurisdiction, and therefore, present application deserves to be rejected. 10. In the result, present application stands rejected. Leave to file appeal is refused. 11. Record and proceedings be sent back to the concerned court. pnd/criap1741.10 (Shrihari P. Davare, J.)