1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Appeal No. 224 of 2009 [Smt. Usha Manohar Desai & ors. Vs. M/s. Dhanvardhini Investment & Financial Consultancy & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R.S. Parsodkar, Adv., for the Appellants. Mr. Jawade, Adv., for respondents. ----- CORAM : A.H. JOSHI, J. DATE : 29th March, 2010. 1. Heard learned Adv. Mr. R.S. Parsodkar for the appellant and learned Adv. Mr. Jawade for the respondents. 2. It is seen that the complainant's case, as spelt out in para 10 of the Judgment, is as follows:- 10. As per complaint the complainant i.e., Deceased Manohar invested Rs.1 lakh on 7.7.1999 for period of 9 months with the accused by cheque drawn on Maharashtra State Co-op. Bank bearing No. 16495 invested Rs.60000/- in cash on 8.2.2000 for 3 months and the said amount belonged to Jayant Desai. The agreements were executed in respect of both transactions on the respective dates as per the agreed terms. The accused canceled the agreement on receipt of prior intimation and issued 3 post dated 2 cheques i.e., disputed cheques towards refund of the principal amount and interest. 3. It is also seen that the defence taken by the accused is of denial of transaction. 4. The complainant has been taken by surprise, since the notice in relation to dishonour was not replied and the complainant had to move to prosecute the case in dark. 5. The defence, as disclosed from the cross-examination, is that the amount, which was sought to be refunded, was not, in fact, received by the accused. This defence is noted in para 11 of the judgment. 6. From the cross-examination, at least, it was clear to the complainant that the transaction, which was the subject-matter for giving cheques, was denied by the accused persons. 7. In his oral submissions, learned Adv. Mr. Parsodkar has placed reliance on the presumption under Section 138 of the Negotiable Instruments Act. According to him, once the execution of negotiable instrument is not disputed, the presumption as to consideration would follow, and it would not be right on the part of the Magistrate to have neglected the presumption. 3 8. Whenever the negotiable instrument is towards any transaction, the presumption as to existence of consideration would come into play. 9. However, on what is shown by the complainant that there existed a previous transaction - an agreement, and upon its cancellation, towards refund, the cheque was issued, and by suggestions given in the cross- examination, the accused denied existence of such contract and having received the consideration, it was the duty of the complainant to prove passing of consideration. 10. It is well settled that a duty of accused in a criminal case is to create a possibility, and it does not stand on the same footing of burden which the prosecution has. 11. In this background, the finding recorded by the Magistrate that the existence of liability was not proved by the complainant is based on sound reasons. No indulgence is called for. 12. Appeal is, therefore, rejected. Judge |Hedau| 4