MANGAL SUNIL LACHAKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD learned advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint filed alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The case of the applicant is that in the year 2003 she had advanced a sum of Rs.60,000/- to the second respondent-accused. The said amount was advanced in January 2003 and second respondent had agreed to repay the same by June 2003. In discharge of the alleged liability, the second respondent issued cheque dated 20th September 2003 in the sum of Rs.40,000/- in favour of the applicant. It is stated that during pendency of another complaint filed by the applicant, the second respondent paid a sum of Rs.20,000/- to the applicant and thereafter executed demand promissory note in the sum of Rs.40,000/- in favour of the applicant. It is stated that on the date of execution of the promissory note, a post dated cheque bearing date of 15th November 2005 in the sum of Rs.40,000/- was issued by the second respondent in discharge of the said liability. The said cheque was dishonoured on the basis of which the complaint was filed.

(2.) THE Trial Court had convicted the second respondent. The Appellate Court has interfered and has passed the order of acquittal. The finding of the learned Appellate Court is that the defence of the second respondent that the amount was repaid by him deserves to be accepted. Another finding is that the applicant is a professional money lender. The Appellate Court found that the applicant was admittedly not possessing a money lending licence and, therefore, the alleged debt cannot be said to be a legally enforceable debt.

(3.) IN a criminal case, the burden on the complainant and the burden on the accused to prove their respective cases is different. Normally, the complainant is required to prove the offence beyond reasonable doubt but the accused can prove his defence on preponderance of probability. From the cross examination of the applicant, the defence of the second respondent regarding payment of sum of Rs.65,000/- was established. The explanation of the applicant for receiving a sum of Rs.30,000/- by the demand draft was that it was received in connection with some other transaction. However, she admitted that she did not have any documentary evidence to show that she had advanced any amount to the applicant. The view taken by the Appellate Court is a probable and possible view. No case is made out for grant of leave. The application is rejected.