1 cri appln 2625.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2625 OF 2010 Janardhan Bhanudas Pataiet .. Applicant Versus 1. Radhakishan Sheshrao Ingole and others .. Respondents Shri V. B. Mantri, Advocate for the Applicant. Shri Milind M. Patil, Advocate for the Respondent No. 1. Smt. Y. M. Kshirsagar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 14TH FEBRUARY, 2011. PER COURT : . Heard learned counsel appearing for the applicant and learned counsel appearing for the respondent. The learned counsel appearing for the applicant invited my attention to the findings recorded by the Trial Court and submitted that perverse findings have been recorded. The counsel further submitted that, once cheque has been issued and signature is accepted the burden will lie on the respondent to rebut the presumption U/Sec. 139 of the Negotiable Instruments Act. The counsel further submitted that, case in hand was not a civil suit and the 2 cri appln 2625.10 Trial Court has not discussed about any legal implication of Sec. 139 of the Negotiable Instruments Act. The complainant never stated that he paid amount in the hotel. However, the Trial Court erroneously recorded in its judgment that the amount was paid in the hotel and there is no witness to said transaction. The counsel further submitted that, the Trial Court has misread the provisions of Section 138 and 139 of the N. I. Act and observed that, the burden was on complainant to prove his case. In fact, the Trial Court should have told to the respondent to discharge the burden U/Sec. 139 of the N. I. Act. The learned counsel further submitted that, no explanation has been offered by the respondent why blank cheque was signed by him and also in his statement recorded U/Sec. 313 of the Criminal Procedure Code he stated that three blank cheques were signed by him. The learned counsel for the applicant submitted that, the whole approach of the Trial Court was erroneous. The trial Court has not appreciated the contentions of the complainant properly. The counsel further submitted that, the cheque was produced on record. The intimation by bank was also produced on record. Notice was given. Since the respondent is immediate neighbour, no receipt of payment was asked for or no agreement was entered into. The complainant entered in to witness box and on oath stated that said amount was given to the respondent. Therefore, 3 cri appln 2625.10 the counsel would submit that, the impugned judgment may be quashed and set aside. At least matter may be remanded back to the Trial Court for fresh consideration. 2. On the other hand, the learned counsel for the respondent invited my attention to the provisions of Sec. 139 of the N. I. Act and submitted that the presumption under the said Act has been rebutted by the respondent. The application which was given to the bank in the month of May 2008 came to be accepted and it is part of the Trial Court record in which it is specifically contended that the cheque No. 122890 was missing and, therefore, the respondent requested for the stopping of payment of the said cheque. The counsel also invited my attention to the evidence of bank employee who stated that said record is available in the bank and such application was received from the respondent to the bank. The counsel further submitted that according to complainant alleged amount was given in the month of November 2008 and the cheque was issued towards said amount is unbelievable. Therefore, counsel for the respondent would submit that, there is no substance in the application seeking leave to appeal from the judgment and order of the acquittal, and therefore, this Court may not entertain the application. 3. Upon hearing the counsel for the applicant and the counsel 4 cri appln 2625.10 for the respondent and upon perusal of evidence brought on record, I am of the opinion that benefit of doubt has been rightly given to the respondent. The application given by the respondent to the bank about missing of cheque in the month of May was part of record and also bank employee was examined and he stated in his statement that record is available in the bank to show that such application was received from the respondent on 23rd May, 2008. Apart from above, the complainant did not produce anything on record in the nature of any document to suggest that the respondent was oblige to repay the legally recoverable debt or liability. Therefore, in my opinion, taking over all view of the matter no case is made out for granting leave to appeal. The application seeking leave to appeal stands rejected. The original Record and Proceedings be sent back to the concern Court immediately. The application stands dismissed. [ S. S. SHINDE, J.] bsb/Feb. 11