IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1489 OF 2008 CRIMINAL APPLICATION NO. 1489 OF 2008 CRIMINAL APPLICATION NO. 1489 OF 2008 Ganesh Narayan Shinde ...Applicant (Orig.Complainant) vs. Sunil Sambhaji Shinde & Anr. ...Respondents (Orig.Accused) Mr.Sameer A. Kumbhakoni for the Applicant. Mr.Prakash K. Deshmukh for Respondent No.1. Mr.D.P. Adsule, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : NOVEMBER 17, 2008 DATED : NOVEMBER 17, 2008 DATED : NOVEMBER 17, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant and Counsel for the respondent. 2. The applicant is challenging judgment and order passed by the Chief Judicial Magistrate, whereby he was pleased to dismiss the complaint filed by the applicant herein under Section 138 of the Negotiable Instruments Act against the accused. The trial court has held that the cheque was not issued for the legally enforceable debt or liability. While recording the said finding, the trial court has taken into consideration various circumstances which have been brought on record by the - 2 - respondent herein and has held that the presumption which is raised under Section 139 of the Negotiable Instruments Act has been rebutted and has established that the cheque was not issued for legally enforceable debt or liability. 3. Counsel for the applicant has submitted that the trial court has wrongly shifted the burden on the complainant to prove that there was legally existed debt or liability. He invited my attention to the points which were framed for determination by the trial court. He relied on the judgment of the Apex Court in the case of K.N. Beena, Appellant v. Muniyappan and another, K.N. Beena, Appellant v. Muniyappan and another, K.N. Beena, Appellant v. Muniyappan and another, Respondents, reported in AIR 2001 Supreme Court 2895. Respondents, reported in AIR 2001 Supreme Court 2895. Respondents, reported in AIR 2001 Supreme Court 2895. He also invited my attention to the evidence of the complainant. He submitted that the accused had not examined himself and therefore, the trial court had erred in holding that the respondent accused had rebutted the presumption under Section 139. In support of the said submission, he relied on the judgment in the case of K.N. Beena. K.N. Beena. K.N. Beena. He further submitted that the trial court had relied on the statement which was - 3 - recorded by him before the police officer on 19.11.2005. He submitted that the respondent had also filed the complaint on 11.11.2005. However, in the said complaint, no reference was made to the statement which was recorded by the police on 19.11.2005. He submitted that therefore, the statement dated 19.11.2005 was an after thought. 4. It is not possible to accept the submission made by the Counsel for the applicant. The trial court has framed the point for determination as follows :- 1) Whether complainant has proved that he has received subject cheque for Rs.1,70,000/- issued by the accused for discharge of legally enforceable liability?" and the trial court has answered the said issue in negative. However, in his judgment while considering the evidence on record and taking into consideration the facts and circumstances which are brought on record by the accused, the trial court has recorded the finding as under :- - 4 - "Considering all these circumstances on record, in my view, the presumption contained under section 139 of Negotiable Instrument Act so far as subject cheque is concerned, stands rebutted." 5. Therefore, though the point for determination has been wrongly framed while considering the evidence on record, the trial court has considered the factual circumstances and has rightly held that the presumption under Section 139 has been rebutted by the respondent accused. 6. The first submission, therefore, made out by the Counsel for the applicant cannot be accepted. 7. It is well settled position in law that for the purpose of rebutting the presumption which is raised under Section 139 of the Negotiable Instruments Act, it is not necessary that in each and every case the accused has to examine himself for the purpose of rebutting the presumption. The presumption raised under the aforesaid provision can be rebutted by cross-examining the - 5 - complainant and his witness and by bringing on record the documentary evidence by examining the witness on behalf of the accused. In the present case, the respondent accused has examined three witnesses. PW 2 Tatya Govind Kamble who is police officer and was attached to Vijapur naka Police Station has admitted that on 19.11.2005, the respondent had made a statement before the police that his father has given blank cheque to the complainant as and by way of security towards the transaction between the respondent’s father and the complainant herein. It has to be noted that this statement was made on 19.11.2005 and the cheque has been dishonoured on 26.11.2005. One other circumstance which is considered by the trial court is that the complainant had issued a cheque for an amount of Rs.25,000/- to the accused on 14.10.2005. The complainant has admitted this fact in his cross-examination. The trial court has observed that there was no occasion for the complainant to issue the said cheque of Rs.25,000/- and no explanation had been given by the complainant regarding the circumstance and the purpose for which the said cheque was issued to the accused. The trial court has - 6 - also considered the case of the complainant that he had received the cheque from the accused as per the settlement arrived at between the parties in the meeting held on 1.11.2005. In order to dispute this fact, in the examination, witness Babulal Chand Shaikh who was working in the postal department, has stated that the accused was on duty between 31.10.2005 to 1.11.2005. The trial court has observed that the complainant has not examined any of the witnesses who attended the said meeting. In the cross-examination, the complainant has admitted that the said settlement was not reduced in writing in the said meeting. The trial court after taking into consideration all these circumstances has, therefore, held that the accused had rebutted the presumption raised under Section 139. Therefore, the complainant has not established that the said cheque was not issued towards the legally enforceable debt or liability. In my view, there is no infirmity or illegality in the said order passed by the trial court. The view taken by the trial court is a plausible view. Therefore, no case is made out by the applicant for grant of leave. - 7 - 8. Leave, therefore, is refused. Appeal does not survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)