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Judgment
V.K. Tahilramani, J.—The applicant has preferred this application for leave to file appeal against the acquittal of the respondent No. 1 accused.
By judgment and order dated 21.12.2006 passed in C.C.No.3189/SS/2005. the learned Metropolitan Magistrate, 12th Court, Bandra, Mumbai has acquitted the respondent No. 1 accused of the offence u/s 138 of Negotiable Instruments Act, 1881.
I have heard the learned Advocate for the applicant-complainant. I have perused the evidence which has been produced by him as well as the impugned judgment and order.
The cheque in question is for an amount of Rs.65,000. The case of the complainant PW2 Ms.Sayyada is that she had advanced loan to the accused No. 1 for repairs of his house. However, in the cross-examination of this witness, it has been brought on record that she could not state the date or month on which she claims to have advanced the loan to the accused. She has also stated that while advancing loan amount, she has not obtained any receipt from the accused. Though the complaint is an income tax assessee, she has admitted that the amounts which she had advanced by way of loan to the accused is not reflected in the income tax returns. Thus, it is seen that there is absence of documentary evidence to substantiate the factum of advance of loan. Useful reference may be made to the decision of this Court in the case of Vasudev Ramchand Ahuja Vs Vilas Shripati Kamble, 2006 (2) BGR. (Cri) 1, wherein it is observed as under:
The observation seen by the trial Court that amount allegedly paid by complainant during period has not been reflected in Income Tax returns as well as in books of account. Reasons recorded by the Court below on appreciation of evidence on record, impugned judgment cannot be said to be unreasonable and perverse.
Moreover, it is seen that the complainant has stated that the cheque was delivered to her not by accused but by PW1 Abdul Rauf Shaikh. She has categorically admitted that accused had not put signature on the cheque in her presence. The extract of the account clearly indicates that there was no other transaction in the said account except payments to Sadguru Finance Company. There is no evidence on record to indicate that as to in what circumstances, the accused had delivered the cheque to PW1 Abdul who in turn handed over to the complainant. This aspect has not been brought out in the evidence of either PW1 Abdul nor in the evidence of complainant. On the other hand, the case of the accused is that the cheque was in the custody of PW 1 Abdul by way of part payment for motorcycle. The account of the accused on which the cheque came to be drawn, shows that the account was for a special purpose i.e. for payment of monthly installments to Sadguru Finance Company in respect of loan for vehicle. It was special account and cheque book was issued in respect of the said special account. The learned Magistrate has acquitted the respondent No. 1 accused on the basis of above facts and the other facts which have been brought out in the evidence. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for.
In this view of the matter, application for leave to appeal is rejected.