IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1527 OF 2008 WITH CRIMINAL APPLICATION NO.1528 OF 2008 Shri.Jagannath V. Sankhe .. Applicant Versus Gauri Construction Co & Anr. .. Respondents Mr.S.K.Shinde for the applicant in both the applications. Mr.Suhas Deokar i/by Mr.Rakesh Bhatkar for the respondent nos.1 and 2 in both the applications. Mr.Y.S.Shinde, A.P.P for the State in both the applications. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 17th January 2009. : 17th January 2009. : 17th January 2009. P.C.: . Heard the learned counsel appearing for the applicant in both the applications. It is not in dispute that facts of both the applications are more or less same and therefore I am referring to the facts of the Criminal Application No.1527 of 2008. The applicant complainant filed a complaint alleging commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). The case of the applicant is that the 2nd (2) respondent is the sole proprietor of the 1st respondent. The case of the applicant made out in the complaint is that the 2nd respondent accused visited the residential premises of the applicant and delivered to the applicant a cheque dated 08th October 2004 drawn in favour of the applicant in the sum of Rs.2,50,000/- for discharge of liability due by the accused to the complainant. The said cheque was dishonoured. After issuing statutory notice, the complaint was filed by the applicant. By the impugned judgment and order the learned Judge has acquitted the 1st and 2nd respondents. 2. The submission of the learned counsel appearing for the applicant is that there was no burden on the applicant-complainant to prove that the cheque was for discharge of any debt or liability in view of presumption under section 139 of the said Act. He invited my attention to finding recorded by the learned Judge in paragraph 7 of the impugned order. He pointed out that though there was no material on record, the learned Judge has made an observation that the applicant had retired from the service in the year 2002 and he had no experience of building construction prior to leaving the job with his employer. He pointed out that there is no basis for the observation that it is improbable that (3) the applicant would have carried out construction without having experience immediately after leaving service and accused would have incurred liability for the said construction work. He pointed out that the case of the applicant has been completely misunderstood by the learned trial Judge. He pointed out that merely because the amount payable under the cheque is not shown outstanding in the personal or business account of the applicant, the presumption under section 139 cannot stand rebutted. He pointed out that the fact that cheque is signed by the 2nd respondent is not disputed. He pointed out the case made out by the 2nd respondent in his statement under section 313 of the Code of Criminal Procedure, 1973 in which he has come out with a case that the cheque-book used to be kept at the construction site and the applicant removed the cheques and misused it. He submitted that the said case is not at all substantiated by the 2nd respondent by adducing evidence. He submitted that there was absolutely no evidence on record adduced by the 2nd respondent for rebutting the presumption under section 139 of the said Act. He submitted that the entire approach of the learned trial Judge is erroneous and the impugned order is perverse. (4) 3. I have carefully considered the submissions. The perusal of the complaint shows that the same is completely silent regarding the nature of liability of the accused. There is a mere assertion in paragraph 12 of the complaint that the cheque was handed over by the 2nd respondent to the applicant-complainant for discharge of liability due by the 1st and 2nd respondents. It will be necessary to refer to the findings recorded by the learned trial Judge in the impugned order. The learned Judge has referred to the affidavit in lieu of examination-in-chief of the applicant. It must be noted here that even the affidavit has not referred to the nature and the basis of liability of the respondents-accused. The learned Judge has also referred to the cross-examination of the applicant. In the cross-examination the applicant has clearly stated that he was serving in Special Steel Limited Company at Tarapur. He stated that he knew the 2nd accused for 7 to 8 years who was doing construction work. He stated that one Raju Mistry was carrying on business of Rachana Construction and the 2nd respondent had obtained construction work from the said Rachana Construction as a sub-contractor. He stated that after taking voluntary retirement in the year 2002 he was working in civil construction in L and T Company on (5) sub-contract basis. He stated that he was carrying on business in the name and style of M/s.J.M.Enterprises. He stated that in the year 2003 he himself, 2nd respondent and Kishor Mistry decided to do the business of construction. He stated that though before drafting the complaint and his affidavit in lieu of examination in chief he had narrated the information to his advocate regarding the nature of transaction between himself and 2nd respondent, neither in the complaint nor in affidavit in lieu of examination in chief the facts relating to financial transaction between himself and 2nd respondent have been incorporated. He admitted that he has no knowledge and experience of construction work. 4. Thus, the applicant himself admitted that neither in the examination in chief nor in the affidavit in lieu of evidence, there is even a reference to the nature of transaction between himself and the 2nd respondent. He admitted in the cross examination that everyday he used to maintain account of his business. He admitted that he had not produced the extract of the account before the trial Court. He admitted that he was paying income tax of his business since the year 2002. Thereafter, he specifically stated that "I have not shown amount outstanding from accused no.2 in income tax (6) returns of myself and of my business." Thus, there is a categorical admission that he had not shown the amount outstanding from the accused no.2 in the income tax returns of himself and his business. 5. The learned Judge relied upon the admission of the applicant that he had no knowledge and experience of construction work till his retirement till year 2002. The learned Judge observed that the complainant neither disclosed description of work nor gave details of the work carried out by him either in the complaint or in evidence. It is in this context the learned Judge has viewed the omission of the applicant to produce books of account and the admission of the applicant that he has not disclosed the liability subject matter of the cheque in the income tax returns which were admittedly filed by him. 6. The learned Judge has also considered one more aspect. In the affidavit in lieu of evidence the applicant specifically stated that the 2nd respondent visited his residential premises and had drawn and delivered to him the cheque in question. In the cross examination the applicant admitted that "I do not remember when the cheque Exh.No.48 is issued by accused (7) to me. Accused has given three cheques to me. No document regarding receipt of cheques and satisfaction of outstanding amount was executed in between myself and accused while handing over three cheques. Prior to issue of three cheques there were also financial transaction in between myself and accused and accused had given cheques in regard to that transaction to me. I did not received amount of that cheques issued prior to issue of three cheques. I did not prosecute the accused for dishonour of earlier cheques". 7. If this is the evidence on record, in my view, this was sufficient to rebut presumption arising under section 139 of the said Act. It is a settled law that for rebutting the presumption it is not necessary in every case for the accused to enter the box. The accused can always contend that on the basis of material available on record the presumption stands rebutted. 8. Once the presumption was rebutted in this case, it is not possible to accept the case of the applicant that the cheque was issued by the 2nd respondent towards legally recoverable liability in as much as admittedly the applicant has not disclosed either in the complaint or in the affidavit in lieu of examination in chief even (8) the nature of transaction between the applicant and the 2nd respondent out of which the alleged liability arose. 9. Considering the averments made in the complaint and the evidence on record, the view taken by the learned trial Judge is certainly a possible view. No case is made out for grant of leave. Applications are accordingly rejected. 10. It is however made clear that observations made in this order are limited purposes for considering the prayers for grant of special leave to prefer an appeal and these observations will not affect any civil dispute between the parties. (A.S.Oka,J)