- (1.) Heard Shri R.A. Tambe, Advocate for the applicant and Shri Abhijit B. Kale, Advocate for sole respondent. This is an application for special leave to file ap peal against order of acquittal passed by the learned Judicial Magistrate, First Class, Rahata, in S.T.C. No. 938 of 2006, decided on 18.8.2007.
(2.) Birefly stated, it is case of present ap plicant/complainant that it is a co-operative society. It has given loan of Rs. 50,000/ to the respondent for installation of a flour mill. The respondent has issued cheque dated 7.9.2006 for Rs. 35,000/ to the society to wards repayment of loan. However, that cheque when presented, was dishonoured on the ground that funds were insufficient. No tice dated 7.10.2006 was issued to the re spondent. Inspite of receipt of notice the re spondent has not paid the amount. Hence, complaint for offence punishable under sec tion 138 of the Negotiable Instruments Act was filed.
(3.) The trial Court has observed in para 14 onwards that the accused has probabalised his defence during cross-exami nation of the complainant and proved that at the time of issuing cheque, no legally en forceable debt was due against the accused. In para 9 of the judgment, the cross-exami nation of P.W. 1 Bhausaheb was discussed. It is admitted that total amount of Rs. 78,846/ was paid till 31st December, 2006 by the accused. It is also suggested but de nied that three blank cheques were issued as security and still two cheques were in pos session of the complainant. After consider ing the evidence, the trial Court has come to a conclusion in para 16 that amount of Rs. 78,848/ was paid by 31.12.2006. The ac cused had paid entire loan amount. Infact loan amount of Rs. 40,000/ was actually paid. He also came to a conclusion that it was not proved that Rs. 70,000/ was out standing. It is also observed that in reply to notice the accused had come out with a spe cific case of issuing three blank cheques and therefore burden was on the complainant to prove that cheques were not blank cheques. It is also observed that the complainant could have proved that not only signature but hand writing on the cheque was also of the accused. So, that same was not blank cheque. The trial Court after analysis came to a con clusion that it was not proved that Rs. 70,000/ was due. It is also observed that the extracts of accounts were produced after clo sure of evidence and there was no opportu nity for the accused to cross-examine the witness of the complainant on that extract.;