1 appln4257-09 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4257 OF 2009 Jaywant C. Kavitke .. Applicant Versus The State of Maharashtra .. Respondent Mr. Sidharth R. Ranghe for the Applicant Mrs. V. R. Bhosale, APP for the State Mr. Surel S. Shal for Respondent no.2 CORAM : N. D. DESHPANDE, J. DATE : 29 th March, 2011 P. C. 1. Heard both sides. 2. This is an application for leave to appeal against the order of acquittal dated 13 th July, 2009 passed by the learned Judicial Magistrate First Class, Pune in Criminal Complaint No. 6404 of 2006 under section 138 of the Negotiable Instrument Act. 3. Perused the impugned judgment and order. Admittedly a cheque has been issued not once but twice after the first cheque was bounced and when it was brought to the notice of the accused, he had issued another cheque. The present complaint is based on the second cheque which was bounced. The accused cannot mainly rely on the some admissions given in the cross 2 appln4257-09 examination by the complainant without stating his case. No case can be made out of money lending or that of security as consideration for the cheque given, for the admitted or denied liability of his mother alone would not be sufficient. Proceedings under Section 138 of the N. I. Act are tried and conducted as per the Criminal Procedure Code as complaint by the Magistrate are almost similar to the civil proceedings for the recovery of money due on account of dishonored or bounced cheque. It is evident from the provisions of N.I. Act regarding procedure of recording of evidence. It is the same which is borrowed from the C.P.C. i.e. examination in chief as evidence by way of affidavit ,is permitted. This is the only criminal complaint case in which evidence by way of affidavit is considered, such is not permitted in any other trial of a criminal case. Moreover it is found that under the N.I. Act, presumption u/s 139 of the N. I. Act is in favour of the complainant. The matter requires reconsideration. Hence the application for leave to appeal allowed. 4. Appeal is admitted. ( N. D. DESHPANDE, J. )