(1) Cri. Application No. 3369 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3369 of 2011 Raju Damu Marathe, Age : 47 years, Occupation : Business, R/o. 229, Balaji Peth, Jalgaon, Taluka and District : Jalgaon. .. Applicant. versus 1. Shantaram Ukha Sonar, Age : 59 years, Occupation : Business, R/o. Near Prapanch Vastu Bhandar, Jalgaon, Taluka and Dist. : Jalgaon. 2. The State of Maharashtra. .. Respondents. ....................... Mr. P.N. Kutti, Advocate, for the applicant. Mr. Vijay B. Patil, Advocate, for respondent no.1. Mr. S.G. Nandedkar, Additional Public Prosecutor, for respondent no.2. ........................ (2) Cri. Application No. 3369 of 2011 CORAM : SHRIHARI P. DAVARE, J. DATE : 21ST DECEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant i.e. original complainant, seeking leave to file appeal challenging the judgment and order of acquittal dated 24th May 2011, rendered by the learned Judicial Magistrate (First Class), 1st Court, Jalgaon, in Summary Criminal Case No. 270/2010, thereby acquitting the respondent no.1 herein (original accused), for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 4. I have perused the impugned judgment and order dated 24th May 2011, and the record and proceedings with the assistance of the learned Counsel for the parties. 5. The factual matrix of the present case is as follows : (3) Cri. Application No. 3369 of 2011 It is alleged that the complainant and accused have cordial relations since they were residents of the same vicinity and the accused was in need of funds for the marriage of his daughter, and therefore, he requested for money from the complainant. The complainant have shares of the Bank, and therefore, accused requested him to take loan on the said shares and give the amount to the accused. Hence, considering the cordial relations between the complainant and accused, the complainant obtained loan on his shares, as well as, shares of his wife, namely, Sau. Shobhabai Raju Marathe, from Jalgaon People's Bank, Branch Dana Bazar, amounting to Rs. 1,00,000/- and Rs. 50,000/-, totalling Rs. 1,50,000/-, and gave amount of Rs. 1,46,000/- to the accused in cash. It is also alleged that the accused performed marriage of his daughter on the said amount. However, although accused assured that he would repay the said amount early, the accused failed to comply with the said assurance. Hence, the complainant demanded the said amount from the accused. Thereupon, accused issued cheque No. 302603, dated 25-10-2009 of Rs. 1,46,000/- drawn on Bank of Maharashtra, Jalgaon Branch, to the complainant and requested that the said cheque should not be presented for encashment purpose presently. Thereafter, the complainant presented the said cheque for encashment purpose, relying upon words of the accused, through People's Bank. (4) Cri. Application No. 3369 of 2011 However, the said cheque was dishonoured and returned unpaid thrice i.e. on 7-1-2010 with the endorsement 'funds insufficient', on 9-1-2010 with the endorsement 'funds insufficient', and also on 12-1-2010 with the endorsement 'funds insufficient', along with respective cheque return memos. Hence, the complainant issued demand notice to the accused, on 18-1-2010, by R.P.A.D.. The said notice was served upon the accused, as well as, accused replied the said notice. However, it is alleged that the accused did not pay the cheque amount within the stipulated period. Hence, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act. After recording verification of the complainant, process came to be issued against the accused under Section 138 of the Negotiable Instruments Act, on 6th March 2010. The accused appeared therein and his plea was recorded and the accused pleaded not guilty. 6. To substantiate the case of the complainant, the complainant examined himself, as well as, examined one witness, namely, Anil s/o. Purushottam Wani, Manager (Loan Section) in Jalgaon People's Cooperative Bank, whereas accused neither examined himself nor examined any defence witness, but put forth his defence through cross examination of the complainant and his witness, and his statement recorded under Section 313 of the Code of Criminal Procedure. (5) Cri. Application No. 3369 of 2011 7. After considering the oral and documentary evidence adduced / produced by the complainant, it is apparent that the initial presumption that the disputed cheque in question was issued by the accused to the complainant towards discharge of debt / liability partly or in whole, under Section 118(a) and 139 of Negotiable Instruments Act is in favour of the complainant, but the said presumption under Section 139 of the Negotiable Instruments Act is reversible / rebuttable and the test for rebuttal of the said presumption by the accused is on preponderance of probability. In the said context, defence of the accused is that the cheque in question was issued by him to the complainant towards security and the complainant has misused the same. 8. Considering the cross examination of the complainant and his witness, it appears that the accused has put forth his defence to complainant through his cross examination. Accordingly, the totality of cross examination of the complainant and his witness reflects that the accused has proved and established his defence on preponderance of probability and the said defence appears to be probable, and therefore, accused has rebutted the said presumption under Section 139 of the Negotiable Instruments Act. (6) Cri. Application No. 3369 of 2011 9. In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability against the accused on the date of issuance of the cheque and the disputed cheque in question was issued by the accused to the complainant towards discharge of legally enforceable debt / liability, partly or in whole. In the said context, complainant has categorically admitted in his cross examination that the accused executed one bond in favour of the complainant between 25-10-2009 to 7-1-2010, but the complainant has not produced the said bond on record. Moreover, the complainant also admitted that the said bond bears signature of one Gopal Sonar, as well as, complainant admitted that he executed a receipt in favour of the accused on 7-11-2009. Moreover, the complainant categorically admitted that the said receipt bears the contents that the accused paid amount of Rs. 30,000/- to the complainant. Pertinently, the complainant also admitted that the payment of Rs. 30,000/- made by the accused to the complainant was towards the said transaction of Rs. 1,46,000/-. Hence, observations made by the learned trial court, to that effect, cannot be faulted with. 10. Moreover, it is also apparent that the complainant has failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt / liability of Rs. 1,46,000/- (7) Cri. Application No. 3369 of 2011 against the accused on the date of issuance of the cheque and the disputed cheque in question was issued by the accused to the complainant towards discharge of the said legally enforceable debt / liability, partly or in whole. 11. Having comprehensive view of the matter, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and the same does not appear to be perverse, as well as, reasoning given therefor, by the learned trial court, apparently, cannot be faulted with, and hence, present Application bears no substance, and the same is devoid of any merits, and the present Application deserves to be rejected. 12. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. 13. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE bgp/cria3369