2-ap-533-2015.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 533 OF 2015 (Leave to file appeal) Namdeo Laxman Shinde … Applicant vs. Smita Sharad Shirsekar and Anr … Respondents Mr. Madhukar Dalvi a/w. Mr. Abhijit Salve, for Applicant Ms. Priya A. Patil i/b. Mr. Gautam Y. Kanchanpurkar for Respondent No.1. Ms. Shilpa G. Talhar, APP for Respondent-State. CORAM : GAURI GODSE, J. DATED : 7th NOVEMBER 2025 ORDER: 1. This application is filed under Section 378(4) of the Criminal Procedure Code (‘Cr. PC’) by the original complainant seeking leave to file an appeal to challenge the order passed by the learned Magistrate acquitting respondent no.1 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. Learned counsel for the applicant submits that the accused was working as an Estate Agent. The applicant had paid a token Page no. 1 of 4 varsha VARSHA VIJAY RAJGURU Digitally signed by VARSHA VIJAY RAJGURU Date: 2025.11.17 13:54:49 +0530 2-ap-533-2015.doc amount for purchasing a flat, as the accused had shown him the flat in the society and promised to complete the transaction. The complainant had paid a token amount of Rs. 3,60,000/- in cash to the accused. Since the transaction did not materialise, the accused assured repayment of the amount by executing an undertaking and issuing a cheque for returning an amount with interest. Hence, the accused had issued a cheque of Rs. 3,60,000/- for returning the token amount paid by the complainant along with the interest. He submits that since the transaction did not materialise, the accused was under an obligation to return the amount as agreed by written assurance. 3. Learned counsel for the applicant submits that the issuance of the cheque is not disputed. There is no rebuttal evidence led by the accused. Hence, in view of the presumption under Sections 119 and 139 of the Negotiable Instruments Act, the accused is liable to be held guilty. `He submits that the trial court has not correctly appreciated the evidence in the form of an undertaking as well as the oral evidence and acquitted respondent no.1, despite the presumption in favour of the complainant. He therefore submits that the leave be granted to file an appeal. 4. I have perused the complaint, the evidence, and the reasons Page no. 2 of 4 2-ap-533-2015.doc recorded by the trial court. Neither in the complaint nor in the evidence affidavit has the complainant stated the particulars of the amount paid by him. The complainant has relied upon the figure mentioned in the undertaking and the cheque issued by the accused. He has stated in his evidence that the accused had agreed to return the amount with interest and promised to pay Rs. 3 Lakhs and Rs. 85000/-. The dishonoured cheque is for Rs, 3,60,000/-. 5. In the cross-examination, the complainant has admitted that there were two witnesses to the receipt acknowledging the amount of Rs.3,60,000/-. However, he did not examine the witness. He has also admitted that the amount mentioned in the photocopy of the receipt produced is different from the amount said to have been paid by him. He has also admitted that there is no interest fixed for repayment of the amount paid by him. The complainant has further admitted in the cross-examination that the accused had given a cheque by way of security. 6. In view of the admissions given in the cross-examination, the trial court held that the defence raised by the accused is a probable defence. The comparison of a photocopy of the receipt and the undertaking was examined by the trial court, and in view of the Page no. 3 of 4 2-ap-533-2015.doc difference in the amount stated in both the documents and for want of sufficient evidence regarding the actual payment made by the complainant, the defence raised by the accused regarding the cheque issued towards security is accepted as a probable defence. Thus, considering the evidence on record and in particular admissions in the cross-examination, the trial court has acquitted respondent no.1. A perusal of the evidence and the admissions given in the cross-examination does not prove the guilt beyond a reasonable doubt. 7. Considering the evidence on record, the view taken by the trial court is a plausible view that could have been taken based on the evidence on record. There can be interference in an appeal against acquittal if, after reappreciation of evidence, the only conclusion that could be drawn is that the guilt of the accused is proved beyond a reasonable doubt. In the present case, there is no ground for granting leave to file an appeal against the order of acquittal. 8. The application is therefore dismissed. (GAURI GODSE, J.) Page no. 4 of 4