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. 2344 OF 2008 CRIMINAL APPLICATION NO. 2344 OF 2008 CRIMINAL APPLICATION NO. 2344 OF 2008 Sunita Rajwani ...Applicant (Orig.Complainant) vs. State of Maharashtra & Anr. ...Respondents (Resp.No.2 Orig. Accused) Mr.Ashok Mundargi, Senior Counsl i/b. Mr.Ganesh Gole for the Applicant. 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. 2. The applicant is challenging judgment and order passed by the Sessions Court whereby the Sessions Court was pleased to acquit the respondent no.2 who is the original accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Brief facts are as under :- 3. The applicant had filed a complaint in the trial court against the respondent no.2 accused under Section - 2 - 138 of the Negotiable Instruments Act. The case of the complainant was that two cheques were issued by the accused dated 19.5.2004 for an amount of Rs.15 lakhs drawn on Panjab National Bank, Bandra Branch, Mumbai. When these cheques were deposited by the complainant in his bank, the cheques were dishonoured on 21.5.2004. A statutory notice was sent by the complainant to the accused, however, the said amount was not repaid within a period of one month and therefore, the complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act. 4. The complainant examined herself and the accused examined her husband in support of the case. The trial court held that the complainant had established her case and convicted the accused for the said offence and sentenced her to undergo RI for 9 months and directed the accused to pay Rs.30 lakhs as compensation and in default, to undergo SI for six months. 5. Being aggrieved by the aforesaid order, the accused preferred an appeal in the Sessions Court. The - 3 - Sessions Court allowed the appeal and set aside the judgment and order of the trial court and the acquitted the accused. Being aggrieved by the said order, the complainant has preferred this application for leave to file appeal. 6. Shri Mundargi, learned Senior Counsel appearing on behalf of the complainant submitted that the lower appellate court had erred in setting aside the well reasoned order of the trial court. He submitted that the respondent accused had not examined herself but had examined her husband. He submitted that admittedly, the husband of the accused was in the hospital at the relevant time when the said transaction had taken place and therefore, his evidence was hearsay evidence. He submitted that the accused ought to have examined herself in order to rebut the presumption raised under Section 139 of the Negotiable Instruments Act. He submitted that the trial court, however, on the basis of conjectures and surmises had come to the conclusion that the presumption which is raised under Section 139 had been rebutted by the accused. He invited my attention - 4 - to the finding recorded by the lower appellate court. He further invited my attention to the evidence of the complainant and the evidence of the accused, copies of which are annexed to the leave application. He submitted that apart from two cheques which were issued by the complainant, the complainant had also relied on the undertaking given by the accused on a stamp paper which was duly signed by her. He submitted that the trial court had given undue emphasis on the reply given by the complainant to the questions asked by the Counsel for the accused. 7. I have heard the learned Senior Counsel, Shri Mundargi appearing on the behalf of the applicant at length. In my view, no case is made out for grant of leave. It is a settled position in law that presumption is raised under Section 139 of the Negotiable Instruments Act when the cheques which are given by the complainant are for legally enforceable liability and that presumption can be rebutted by the accused soliciting answers from the complainant in his cross-examination. Therefore, it is not necessary that - 5 - in each and every case, the accused has to examine himself or any other witness for the purpose of rebutting the presumption which is raised under Section 139 of the Negotiable Instruments Act. Once the presumption which is raised under the said section is rebutted, the burden shifts on the complainant to establish that the cheques were issued for a legally enforceable liability. In the present case, it is the case of the complainant that the said cheques were given for the repayment of the friendly loan of Rs.30 lakhs which was given by the complainant to accused. The complainant has admitted that the respondent’s husband was in the hospital when this transaction took place. According to the accused, the complainant had paid only Rs.40,000/- towards the hospital expenses incurred by the accused. In the cross-examination, the complainant was unable to state the sources from which the huge amount of Rs.30 lakhs was procured by her. She has stated in the cross-examination that she had an amount of Rs.3 lakhs with her and the balance Rs.27 lakhs was procured by her from 9 other persons. She, however, was unable to state the names of those persons. She has - 6 - merely stated if the names of those persons are disclosed, there would be family dispute between the said persons. She has also admitted in the cross-examination that this amount was not disclosed by her before the Income-Tax authorities. The complainant also was not in a position to give the denominations and particulars and the manner in which the said amount was paid by the complainant to the accused. In view of these answers which are given by the complainant in her cross-examination, the lower appellate court has rightly observed that the accused had successfully rebutted the presumption which was raised under Section 139. Even so far as the undertaking given by the accused is concerned, the complainant in her cross has stated that the document at Exhibit P-3 was not signed by her in her presence. That she was unable to state who had filled the blank Exhibit P-3. She has further stated that she had not sent or instructed Vikramsingh to send any letter regarding this transaction. She has further stated that she did not maintain any accounts of her income and expenditure and she had paid tax of about Rs.17,000/- over her annual income of about Rs.2.5 - 7 - lakhs. She has further admitted that she did not file Income tax returns for the last 2 years. On these admissions, the lower court has rightly held that even the undertaking which was given by the accused on the stamp paper also was not acceptable. The lower appellate court, therefore, in my view, was justified in acquitting the respondent accused. No case, therefore, is made out by the complainant for grant of leave. 8. Leave is refused. Appeal is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)