1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1321 OF 2011 Malti Ahuja .Applicant V/s. Sunil Ahuja & anr. .Respondents Mr.Rajesh Gehani, Advocate, for the Applicant Smt.V.R.Bhosale, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. DATE : 1ST DECEMBER, 2011 P.C. . Heard the learned counsel for the respective parties. 2. This is an application for leave to file an appeal against Judgment of the learned Metropolitan Magistrate, 12th Court, Bandra acquitting respondent No.1 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate has noted that the Complainant had shown that 2 she had withdrawn the sums amounting to Rs. 8,15,000/- which she claimed to have paid to the accused and against which the accused had given her cheques for the same amount which were dishonoured. The learned Magistrate had also noted Judgment of the Supreme Court in Rangappa Vs. Sri Mohan, reported at 2010(2) Bom.C.R. (Cri)795 as also Judgment in respect of blank cheques or incomplete negotiable instruments. There can be no doubt about the observations of the Supreme Court in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported at 2008 ALL MR (Cri)1164 (S.C.) that the accused is not expected to enter into witness box in each and every case for rebutting the presumption, but the observation that prosecution, must prove the guilt of the accused beyond reasonable doubt in that Judgment would be eclipsed by the presumption under Sections 118 & 139 of the Negotiable Instruments Act, 1881 which have been duly discussed by the Supreme Court in Rangappa 3 Vs. Sri Mohan and therefore, the point at which the appreciation of evidence begins is not proof of facts by the Complainant, but the presumption in favour of the Complainant which the accused is supposed to rebut. In view of this, Judgment requires re-consideration. Leave granted. 3. Admit. 4. Call for R & P. 5. Action under Section 390. (R.C.CHAVAN, J.) 4 5