/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3620 OF 2006 ALONGWITH CRIMINAL APPLICATION NO.3621 OF 2006 Sohanlal Nathulal Jain ...Applicant V/s. M/s.Akta Developers Pvt. Ltd. & Ors. ...Respondents Mr.M.H. Ramsinghani for Applicant. Mr.Harshad Bhadbhade for Respondent No.2 and 3. Mr.Y.M. Nakhawa APP for the State. CORAM : V.M. KANADE, J. DATED : 12th SEPTEMBER, 2007. P.C:- 1. Heard learned counsel for the Applicant and learned counsel for the Respondent Nos.2 and 3. 2. The Applicant takes exception to the orders passed by the Special Metropolitan Magistrate 50th Court, Vikhroli, Mumbai in C.C.No.1259/SS/05 and C.C.No.1260/SS/05, who by his orders dated 02/08/2006 was pleased to acquit the Respondents for the offence punishable U/s.138 of N.I. Act. / 2 / 3. Learned counsel for the Applicant submitted that he had booked two shops and he had paid entire consideration. Part of the consideration was paid by cheque and balance consideration was paid in cash. It is case of the Applicant that two receipts for total amount of Rs.25,000/- were issued by the Respondent No.1 and that no receipt was given towards cash component paid by him. It is case of the Applicant that since possession was not handed over by the builder of the said two shops, Respondents issued four cheques in favour of the Applicant and on being deposited, said cheques were dishonoured and therefore, the Applicant issued statutory notice in which factual background of the case was mentioned and fact that he had paid balance amount by cash. Learned counsel for the Applicant further submitted that in the reply which was given to said statutory notice, Respondents/Accused stated that the shops could not be constructed on the ground of certain difficulties and that since now plan was sanctioned he had started construction work and therefore, the Respondents had requested the Applicant to co-operate with them or await for some time till the said shop is sold to another prospective buyer. Learned counsel for the Applicant further submitted that even in the reply, Respondent No.1 had not / 3 / denied fact of having accepted cash component which was specifically mentioned in the statutory notice. He further submitted that U/s.139 of N.I. Act, presumption was raised regarding existence of liability towards the amount mentioned in the said cheque and that the Respondent No.1 had not rebutted the presumption which was raised. He further submitted that even in the cross examination the Respondent No.1 was not in a position to rebut the presumption. He invited my attention to the evidence of the complainant and cross examination of the advocate for the accused. He submitted that the Trial Court had erred in coming to the conclusion that there was no existing debt or liability and therefore, no offence U/s.138 of N.I. Act was made out by the Complainant. He submitted that the finding recorded by the Magistrate, more particularly, in para 9 to 12, therefore, was perverse and said finding was liable to be set aside. He further submitted that the complaint was also dismissed on the ground that said debt or liability having become time barred was not legally enforceable. 4. It is not possible to accept the submissions made by the learned counsel for the Applicant. In the present case, it is an admitted position that / 4 / only two receipts were given by the Respondent No.1 one for an amount of Rs.10,000/- and other for an amount of Rs.15000/-. The Respondent No.1 has not given any receipt towards cash component. Further it is also admitted by the Complainant in the cross examination that no agreement was executed between the parties in respect of sale of two shops. Further, merely because in the reply which was given by the Respondent No.1 to the statutory notice no denial was made by the applicant regarding payment of cash component by itself cannot construe to mean that the Respondent No.1 had admitted having received cash component as alleged by the applicant herein. It is a well settled position in law that the offence punishable U/s.138 of N.I. Act is complete only if it is established inter alia that there is existing debt or liability. Though initially presumption is raised regarding existence of debt or liability, said presumption is rebutable. It is also a well settled position in law that for the purpose of rebutting this presumption accused may rebut presumption by establishing through cross examination that there was no existing debt or liability. It is not necessary in each and every case the accused should lead evidence on his own. If the presumption is rebutted in cross examination, the accused may choose not / 5 / to lead evidence on this aspect. In the present case, careful scrutiny of the cross examination reveals that this presumption was successfully rebutted by the accused and therefore, it cannot be said that the finding recorded by the Magistrate is perverse or is not based on evidence which is on record. It is also a well settled position in law that the jurisdiction which is vested in this Court U/s.378 of Cr.P.C. can be exercised only in case where it is noticed that the finding which is recorded by the Trial Court is perverse or finding based on material which is not found on record. Further, if two views are possible and the Trial Court has taken one view then this Court should not substitute its own view to the view taken by the Trial Court, particularly, in a case while exercising jurisdiction U/s.378 of Cr.P.C. Hence, aforesaid submissions cannot be accepted. 5. In view of this, it is not necessary to deal with the question regarding second finding on the basis on which complaint was dismissed. In the result, leave is refused. Appeals are dismissed. . Criminal Applications are dismissed and disposed of accordingly. / 6 / V.M. KANADE, J.