13-ALP-317-2019.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPLICATION FOR LEAVE TO APPEAL (PVT.) NO. 317 OF 2019 Balvirsingh Motiram Punjabi … Applicant Vs. Accurate Financial Services Through Sudhakar Ramdas Wagh And Anr. … Respondents Mr. Sachin Gite for the Applicant. Smt. Shilpa G. Talhar, APP for the State. CORAM : GAURI GODSE, J. DATED : 13th NOVEMBER 2025 ORDER: 1. This application is filed under Section 378(4) of the Criminal Procedure Code by the original complainant for 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. 2. Learned counsel for the applicant submits that the applicant’s amount of Rs. 4,70,000/- was lying in the DEMAT Account, which the accused company operated for trading purposes. However, the complainant had intimated the accused that, in the intervening period, the complainant was not interested in continuing with Page no. 1 of 5 MJ Jadhav MANGALTAI JAYWANT JADHAV Digitally signed by MANGALTAI JAYWANT JADHAV Date: 2025.11.24 14:13:36 +0530 13-ALP-317-2019.doc trading. However, without the complainant’s permission, the accused company executed the transactions involving the trading of shares. Since the transactions were done without the complainant’s permission, the accused agreed to repay the amount. The accused accepted his liability and executed an affidavit dated 31st March 2012 stating that he had carried out the transaction without the complainant’s permission and thus agreed to repay the amount. For repayment, he had issued a cheque for an amount of Rs.4,50,000/- and a promissory note dated 10th April 2012 was also executed. Learned counsel for the applicant, therefore, submits that once the issuance of the cheque was not disputed, the presumption under Sections 119 and 139 of the Negotiable Instruments Act was in favour of the complainant, which was not rebutted by the accused by leading any evidence. 3. Learned counsel for the applicant submits that the complainant led oral evidence as well as produced the documents to support his allegations that the dishonoured cheque was towards the legally enforceable liability that was accepted by the accused by executing the affidavit and a promissory note. He further submits that the trial Court has disbelieved the affidavit on the ground that the witness who had signed the affidavit was not examined by the complainant. He thus submits that, despite oral and documentary Page no. 2 of 5 13-ALP-317-2019.doc evidence supporting the allegations, the trial Court has accepted the defence that the complainant misused the accused's misplaced cheques. He submits that there was no evidence to support such a defence raised by the accused. He thus submits that the applicant be granted leave to file an appeal. 4. I have perused the evidence annexed to the application. In the statement of the accused recorded under Section 313 of Cr.P.C., the accused has denied issuing the cheque for the amount as per the promissory note. He has also denied executing the affidavit and the promissory note. The accused has not led any evidence. However, during cross-examination, suggestions are made to the complainant regarding the misplaced cheques and the trading agreement executed in favour of the accused company for carrying out trading transactions from the complainant’s DMAT Account. The complainant has shown ignorance of the suggestions regarding the particulars of the trading account details and the password. The complainant has categorically admitted that he was trading through the accused, who was operating the DMAT Account. Though the complainant had denied the suggestion that he had misused the security cheques from the office of the accused, the complainant has further admitted that he was unaware of the particulars of the share trading DMAT Account and its user ID and password. Page no. 3 of 5 13-ALP-317-2019.doc 5. The complainant has not denied that he was trading in the shares through the accused. Considering the admissions given by the complainant regarding the trading transactions and his ignorance about the actual trading, the trial Court held that the defence raised by the accused is a probable one. The admissions made by the complainant regarding the trading done by him through the accused are also considered by the trial Court to constitute a probable defence. The accused has denied executing the affidavit and the promissory note. However, apart from the oral evidence led by the complainant, no attempts have been made to prove the correctness of the affidavit and the promissory note. With reference to the dispute raised by the accused regarding the correctness of the promissory note and the affidavit the trial Court has observed that the complainant did not make any attempt to examine the witness who had signed the affidavit as alleged by the complainant. 6. Thus, in view of the admissions given by the complainant regarding his carrying out the trading transaction through the accused and his ignorance towards the actual particulars of the trading account, coupled with the admission regarding execution of the trading agreement, the trial Court has accepted the defence raised by the accused a probable defence and that the complainant failed to prove the guilt beyond reasonable doubt. The evidence, Page no. 4 of 5 13-ALP-317-2019.doc therefore, raises doubts about the transactions alleged by the complainant that the accused had promised to return the amount towards the transaction carried out from the complainant’s DMAT Account. Since the transaction between the parties concerns trading in shares, and the complainant does not dispute that he carried out the transactions through the accused, the defence of the accused is rightly considered by the trial Court as probable. 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. 5 of 5