VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 3371 OF 2006 The State of Maharashtra Applicant (Orig. Complainant) Vs. Kalpak Bhaskar Gadhave Respondent (Orig. Accused) Mr. K. V. Saste, APP for the Appellant. Mr. P. R. Arjunwadkar, for the Respondent. CORAM : Smt. V. K. TAHILRAMANI, J. DATE : JUNE 18, 2008. PC :- . The applicant/original complainant has filed this application for leave to appeal against the judgment and order dated 18th May 2006 passed by the learned Judicial Magistrate, First Class, Solapur in Summary Trial Case No.49998 of 2003. By the said judgment and order, the learned Magistrate has acquitted the respondent/original accused, for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that it is a dairy doing business of supplying milk. The accused used to daily take about 200 to 300 litres milk from the said dairy, hence, amount of Rs.2,89,096/- was - 2 - due to the complainant from the accused. In respect of the said liability, the cheque in question came to be issued. As the cheque was dishonoured, the complaint came to be filed. 3. I have heard learned APP Mr. K. V. Saste for the applicant and learned counsel Mr. P. R. Arjunwadkar, for the respondent/accused. I have perused the judgment and order as well as the evidence in the present case which has been annexed. 4. In support of its claim, the complainant examined PW 2 Prakash Sontakke and PW 3 Suresh Dabhade. These witnesses have stated that as the amount was due from the accused, letter dated 17th February, 2003 (Exh.45) and letter dated 28th February 2003 (Exh.46) came to be sent to the accused. Both these letters mention that an amount of Rs.3,85,311/- was due from the accused. PW 3 Suresh Dabhade in his cross-examination has stated that out of the said amount of Rs.3,85,311/-, Rs.one lakh was received by cheque. Rs.92,019/- was received in February 2003 and Rs.1,30,000/- was received in March 2003. From the evidence on record, specially of PW 3, it appears that by the end of March 2003 an amount of Rs.3,22,019/- was received - 3 - from the accused out of the amount of Rs.3,85,311/-. Thus, only amount of Rs.63,292/- was to be received from the accused; whereas amount written on the cheque is Rs.2,89,096/-. 5. At this stage I would like to refer to the defence taken by the accused. The defence of the accused is that an agreement has been entered into between himself and the complainant for supply of milk. Pursuant to the said agreement, by way of security the accused had handed over two blank signed cheques. According to him, the complainant has misused the said blank cheques by filling an amount of Rs.2,89,096/- on one of the blank cheques and putting it in the bank. The complainant has admitted in his cross-examination that it is true that the ink in respect of the date and signature on the cheque is similar, and the ink in which the amount and name of payee was written, is different. The complainant has further stated that he cannot tell which part of the cheque is written by the accused. From the evidence on record it appears that the defence taken by the accused is probable. 6. Moreover, from the evidence on record it is clear that only amount of Rs.63,292/- was due from the accused; whereas the amount of Rs.2,98,096/- was - 4 - written on the cheque. In such case, it cannot be said that any legal liability arose in respect of the amount of Rs.2,89,096/- on the accused. Taking into account all these facts, the learned Magistrate had acquitted the respondent/accused. 7. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is reasonable and possible. Hence, no interference in the order in question is called for. In the result, the application for leave to appeal is rejected. Sd/- [Smt. V. K. TAHILRAMANI, J.]