1 3689.09 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 3689 OF 2009 Shri. Sanjeev Dayanendraq Mittal ... Applicant Versus Smt. Sanjudevi Pawankumar Rai and anr. ... Respondents Mr. S.R. Page, Advocate for the applicant. Mrs. V.R. Bhosale, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 17, 2011 P.C. 1. This application is for leave to file appeal against the judgment and order dated 24th April, 2009 passed by the Judicial Magistrate, First Class, Court II. Palghar in Summary Case No. 1792 of 2007 under section 138 of the Negotiable Instruments Act. The complaint filed by the applicant was for dishonour of cheque for the sum of Rs. 20,000/- given by respondent no. 1 to him. The cheque had dishonoured when presented for payment. According to the applicant, the cheque was given towards the 2 3689.09 licence fee for the period of 10 months in respect of gala no. 6, S1 building, Rajat Park, Boisar given by him to respondent no. 1 on leave and licence basis. The defence of the respondent no.1 was of total denial of issuance of cheque for the purpose alleged. According to respondent no.1 there was no transaction of leave and licence in respect of the premises between her and the applicant. As per the statement under section 313 of Cr.P.C. of respondent no. 1. the premises had been sold to her by the applicant for which he had not entered into a registered document despite receiving the part consideration of Rs. 2,02,000/- out of the total consideration of Rs.3,35,000/-. It is the allegation of respondent no. 1 that the applicant had failed to execute the document for transfer of the premises to her though respondent no. 1 had sent advocates notice dated 31st July, 2007 (Exh. 23) to the applicant. In the cross examination, the applicant had not disputed receipt of the notice dated 31st July, 2007. When asked about the reply to the notice, he stated that he could not remember whether any reply was given. Respondent no. 1 had also disputed the contents of the cheque. 3 3689.09 The trial court found that the writing of the amount written in words was different from the writing for the amount in numbers. It also differed from the writing of the date on the cheque. It noticed that the amount written in words and written in number was with ink different from that for the name and the date of the cheque. The applicant in his cross examination admitted that he had not given any instructions regarding the transaction to income tax authorities while filing the returns. In view of these facts the trial court held that there was sufficient material brought before the court by respondent no. 1 to rebut the presumption under section 139 of the Negotiable Instruments Act that the cheque had been received by the applicant in discharge of whole or any part of the legally enforceable debt or liability. Once the presumption stood rebutted, it was for the applicant to bring in evidence before the court to establish that the cheque in question had been given to him in discharge of some legally enforceable debt or liability. The applicant failed to discharge that burden. The complaint came to be dismissed by the trial court. I find no infirmity whatsoever with the 4 3689.09 impugned judgment and order. After respondent no.1 rebutted the presumption in favour of applicant, it was necessary for the applicant to adduce positive evidence regarding existence of the legally enforceable debt or liability. In the absence of such evidence, the complaint has been rightly dismissed. Hence, application is dismissed. [Judge]