31-ALP-107-2020.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 107 OF 2020 Mr. Akhilesh Tulsibihari Dubey … Applicant vs. The State of Maharashtra and Another … Respondents Mr. C. S. Patil a/w. Mr. S. B. Ghadage i/b Mr. Amit Singh for the Applicant. Ms. Aparna R. Shrivastava i/b. Ms. Priya Rita for Respondent No. 2 (through VC). Ms. Shilpa G. Talhar, APP for the Respondent-State, CORAM : GAURI GODSE, J. DATED : 28th NOVEMBER 2025 ORDER: 1. This application is filed under Section 378(4) by the original complainant for seeking leave to file an appeal to challenge the order passed by the learned Magistrate acquitting respondent no. 2 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. Learned counsel for the applicant submits that by way of friendly loan the applicant had advanced an amount of Rs. 1/5 rrpillai RAJESHWARI RAMESH PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI Date: 2025.12.10 15:29:53 +0530 31-ALP-107-2020.doc 5,00,000/- to the accused. For returning the said amount a cheque was issued which was dishonoured. After the complaint was filed, the accused appeared before the court and filed an undertaking that he would pay the cheque amount within six months. However, the accused did not comply with the statement. He submits that the filing of undertaking by the accused itself supports the allegation that an amount of Rs.5,00,000/- was paid by the complainant and the dishonoured cheque was towards the repayment. He submits that the applicant has supported his allegations by leading oral evidence. He submits that an employee of the complainant was also examined to support the allegations that the amount was paid to the accused by way of friendly loan. 3. Learned counsel for the applicant submits that in view of the substantial evidence produced on reocrd the aspect of payment of the amount of Rs.5,00,000/- is proved. Issuance of cheque is not disputed, hence presumption under Sections 119 and 139 would be in favour of the complainant. In the absence of any rebuttal evidence that the amount was repaid, the accused would be liable to be convicted for the offence. He 2/5 31-ALP-107-2020.doc therefore submits that the applicant be granted leave to file an appeal. 4. I have perused the application and the copies of the evidence produced on record by the learned counsel for the applicant. The respondent has raised a defence that the cheque was towards a security in view of the transaction between the parties and it was not towards repayment of any loan amount. In the cross-examination of the complainant, suggestions were put to the complainant regarding the business transactions between the parties. The complainant has admitted the suggestion put to the complainant regarding the land transaction in the year 2014. Witness no. 2 examined by the complainant has also admitted about the transaction between the parties with regard to the land. The accused has examined an independent witness to support his defence that there was a transaction between the parties with regard to the land. 5. In view of the evidence led by the accused and the admission given by the complainant and his witness, sufficient suspicion is created on the allegations made by the 3/5 31-ALP-107-2020.doc complainant that the dishonoured cheque was not towards any legally enforceable debt. In view of the evidence on record the defence raised by the accused regarding a land transaction between the parties is accepted as a probable defence. 6. On perusal of the evidence on record the issuance of the dishonoured cheque towards any legally enforceable debt is not proved beyond reasonable doubt. There is also no substantial evidence produced on record to show that the amount of Rs. 5,00,000/- was paid towards any friendly loan. Copy of the undertaking by the accused, relied upon by the learned counsel for the applicant is filed after appearing before the court by way of a full and final settlement. The undertaking is not a proof of the allegations to hold the accused liable for the offence under Section 138 of the Negotiable Instruments Act. Mere filing an undertaking by way of amicable settlement cannot be accepted as sufficient evidence to prove the guilt. The accused has led evidence and from the suggestions put to the complaint and his witness in the cross-examination the probable defence is raised that the cheque was not issued towards legally enforceable debt as there were land 4/5 31-ALP-107-2020.doc transactions between the parties. 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 dismissed. (GAURI GODSE, J.) 5/5