JUDGMENT M.G. Gaikwad, J.
1. Heard learned Advocates for respective parties.
2. By this application original complainant seeks leave to prefer appeal against acquittal. The complainant had filed complaint alleging offence under Section 138 of Negotiable Instruments Act. According to complainant there was a business deal between complainant and accused. Accused used to purchase fertilizers on credit. On 28.10.2002 account of Rs. 1,53,400/- was due towards accused, as demand of the same was made. After that demand dated 28.10.2002, on 11.12.2002 accused issued a cheque bearing No. 028200 for Rs. 1,40,000/- in favour of the complainant. Same cheque later on came to be dishonoured as offence under Section 138 of N.I. Act was alleged to have been committed.
3. At the trial, accused put forth a specific defence that he has repaid the entire amount and no dues were outstanding with him. In support of his defence he has examined himself and one Arun Tukan an employee from R.C.F. who has produced on record the extra of accounts at Exhs. 40 to 42. After considering that evidence, the learned Magistrate held that the presumption arising in favour of the complainant because of issuance of cheque can to be rebutted by the evidence of accused on his witness the employee from R.C.F. and finally the acquittal came to be recorded. Complainant intends to prefer appeal against that acquittal and seeks leave by this application.
4. Learned Advocate Mr. Shirurkar appearing on behalf of applicant made submission that when the accused had issued a cheque on 11.12.2002 he has admitted the dues outstanding, so there is presumption in favour of the complainant and accused did not repay the same. According to him, the subsequent payment made during pendency of the case are not relevant.
5. On the other hand, learned Advocate Mr. Deshmukh appearing on behalf of accused-respondent No. 1 pointed out from the depositions of the accused and his witness that complainant was acting as a dealer for R.C.F. Huge amount of the company was due towards the dealer, so the company offered assistance to recover the said dues from the sub-dealers and in such attempt, certain demand drafts were obtained from the accused who was sub-dealer. Said amount came to be deposited in the account of present complainant. The witness has specifically stated that there is an entry in the account depositing amount of Rs. 1,40,000/- by D.D. dated 5.4.2002. When the complainant was in the witness box, it was asked to him whether he has received that D.D. but he denied this fact. This mere denial put forth by the complainant is falsified by the evidence of Manager of R.C.F. who has specifically stated that in the account of accused said D.D. came to be deposited. According to the complainant total dues outstanding were Rs. 1,53,000/- on 28.10.2002. In support of the said contention no extract of accounts were produced. It is not the complainant's contention that excluding the amount of Rs. 1,40,000/- by D.D. dated 5.4.2002 still the dues outstanding were Rs. 1,53,000/-. The complainant admitted receipt of Rs. 30,000/-. On oath accused gave statement that entire amount has been repaid and that defence is also supported by the Manager of R.C.F. who gave evidence and also produced document on record. As such the presumption arising under Section 139 of N.I. Act of existing debt or legal liability is rebutted by the accused by leading evidence. Thereafter it was necessary for the complainant to show that besides the above referred repayments, dues were outstanding but for that no evidence is there. In view of these facts, the learned Magistrate has rightly held that the complainant failed to prove that the cheque was issued for existing debt or legal liability. The defence put forth by accused about repayment is accepted and judgment of acquittal came to be recorded. No infirmities are found, in the judgment. So it is not found to be a fit case wherein leave needs to be granted to challenge the acquittal.
6. Application is dismissed by refusing leave to prefer appeal against acquittal.