JUDGMENT M.G. Gaikwad, J.
1. By this application original complainant claims leave to prefer appeal against the acquittal.
2. Applicant filed complaint against respondent alleging offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the Act for short). According to him, in the month of April, 2000, he had advanced an amount of Rs. 1,08,000/- to the accused and for its repayment the accused had issued cheque dated 3.5.2002. Said cheque was presented in the Bank, however, same came to be dishonoured. After the intimation of dishonour of the cheque, demand notice was issued on 8.5.2002 but the same was returned unserved. So second notice dated 16.5.2002 came to be issued and it was served on the respondent. In spite of receipt no payment is made. So alleging offence under Section 138 of the Act, complaint came to be filed.
3. The accused came with a defence that there was no transaction at all in between complainant and the accused. His defence is specific that he had transaction with the father of the complaint. The father of the complainant by way of security obtained blank cheque from him. The complainant had stolen away the said cheque and lodged false complainant. In support of his contention complainant examined himself and produced on record the documents. His version is that there was a transaction between him and the accused. On behalf of the accused, complainant's father is examined as a witness. He supported the defence that the cheque in dispute was given to him by the accused by way of security and it was a blank cheque. His son who was staying with him upto 1.5.2002 left the house and that time he had stolen away the cheque in question. He had filed complaint with M.I.D.C. Police Station. He claimed that this fact came to his knowledge when accused approached him and asked whether he had presented blank cheque in the Bank. Thereafter second complaint also came to be filed. As the police did not take cognizance he had filed complaint in Court against his son the present complainant. Not only this he has produced on record 2 documents Exhs. 44 and 45 admitting the transaction with the original accused and accused giving him cheque. Accepting this evidence, learned Magistrate held that the presumption arising under Section 139 of the Act has been rebutted and accused came to be acquitted.
4. Mr. Gugale, learned Advocate for applicant submitted that the evidence of the father of the complainant is not reliable and at the most it can be said to be an explanation from the accused which is not sufficient in rebuttal of the presumption, He made attempts to show that even today also the complainant is staying with his father. So story narrated by father of the complainant that complainant committed theft of the cheque cannot be relied upon but on perusal of the deposition of the father of the complainant who is examined as a defence there is no admission that after 2.5.2002 the complainant is staying with his father. So there is absolutely no material on record to show that today also complainant is living jointly with his father. If it would have been a fact then there was no reason for the father of the complainant to give evidence against the complainant and support the defence. So by the evidence of complainant's father which is supported by documentary evidence Exhs. 44 and 45 and defence put forth by the accused is in fact proved and the presumption arising under Section 139 is rebutted. On merit complainant is having no case. Under these circumstances question of grant of leave to prefer appeal against acquittal does not arise.
5. In the result, leave to prefer appeal against acquittal is refused. Application is dismissed.