JUDGMENT :. The applicant-complainant has preferred this application for leave to file an appeal against the judgment and order dated 20.1.2007 passed by the learned 6th Judicial Magistrate, F.C. Thane in Summary Case No.3737 of 2004. By the said judgment and order, the learned Magistrate acquitted the Respondent No.1-accused of the offence under Section 138 of the Negotiable Instruments Act.

2. The case of the complainant is that in October, 2003 the accused requested the complainant for loan of Rs.2 lakhs. The complainant paid the amount of Rs.2 lakhs in cash. Thereafter, the accused issued a cheque in respect of the said loan. The said cheque was dishonoured. Hence, complaint came to be filed.

3. I have heard the learned advocate for the applicant-complainant. I have perused the impugned judgment and order as well as the evidence.

4. The defence of the accused is that he had n ever obtained loan of Rs.2 lakhs in October, 2003 but the loan was taken by Mr. Oevanand from the complainant and the disputed cheque was obtained by the complainant from the accused as a security for the loan amount taken by Mr. Devanand. As Mr. Devanand failed to repay the amount and went to his native place, in order to take revenge, complainant deposited the cheque issued by the accused.

5. From the evidence on record, it is clear that complainant did not have the capacity to advance loan of Rs.2 lakhs in cash at the relevant time. The complainant has admitted that his annual turnover was Rs.75,000/-. However, thereafter the complainant has stated that he used to give business of Rs.4 lakhs to accused every month. Complainant then stated that his annual turnover was not more than Rs.75,000/- however still he was in a position to give business of Rs.4 lakhs to the accused every month. Moreover, if his turnover was Rs.75,000/- per year, the complainant would not have been in a position to advance Rs.2 lakhs in cash to the accused. The complainant has admitted that other than the disputed cheque, he does not have any proof to show that he had advanced an amount of Rs.2 lakhs in cash as a loan to the accused.

6. Though the complainant is income tax assessee, no returns of income-tax, sales tax book of accounts have been produced by him to show that he had capacity to advance an amount ofRs.2lakhs in cash and that he had indeed advanced such an amount to the accused. Useful reference may be made to the decision of this Court in the case of V asudev Ramchand Ahuja Vs. Vilas Shripati Kamble reported in 2006(2) Bombay C.R. (Cri.) 1, wherein it is observed as under;

"The observation seen by the trial Court that amount allegedly paid by complainant during period, has not been reflected in Income Tax Returns as well as in Books of Account. Reasons recorded by the Court below on appreciation of evidence on record, impugned judgment cannot be said to be unreasonable and perverse."

7. It is pertinent to note that it is the specific case of the complainant that he had advanced loan of Rs.2 lakhs in cash to the accused. The initial case of the complainant in his demand notice, original complaint and the evidence on affidavit is that amount of Rs.2 lakhs was advanced by him in cash and for the repayment of the said amount, the accused issued the disputed cheque. However, thereafter in his evidence, the complainant has stated that he did not pay cash amount to the accused but he handed over gold to the accused as a loan and for the repayment of the said loan, accused issued the cheque. Thus, the complainant has made a completely contradictory statement to the initial statement made by him. The complainant has further confirmed that there was no cash transaction of Rs.2 lakhs towards loan between the accused and himself. The answers given by complainant about the nature of transaction are of vital importance. Right from the beginning, it was the specific case of the complainant that alleged amount was advanced in cash but, during the crossexamination complainant has chang

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