mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3749 OF 2009 Shaikh Mohammed Shafi Ibrahim ... Applicant versus Khwaja Mohammed R. Shaikh & Anr ... Respondents ... Mr. S.R. Ganbavale for applicant Mr. S.N. Gawade APP for the State. CORAM : D.G. KARNIK, J. DATED : 2nd December 2009 P.C. 1. By this application the applicant prays for quashing of criminal case no.199 of 22001 for offence punishable u/s.138 of the Negotiable Instruments Act. The fact regarding issuance of a cheque, its dishonor, issuance of a notice and non payment in pursuance of a notice are not disputed before me. Counsel for the petitioner however submitted that there was no legal liabilities in as much as the complainant had already given up his tenancy rights and therefore, there was no question of issuing him of a cheque for surrender of a tenancy. As there was no legal liability, applicant could not be prosecuted. 2. Section 118 of the Negotiable Instruments Act raises a presumption as to the consideration of the Negotiable Instrument. Section 139 of the Act raises an additional presumption which says that it shall be presumed unless contrary is proved that the holder of the cheque received the cheque for discharge in whole or in part of any debt or other liability. Thus, the burden of proving that the cheque was without consideration and/or there was no existing legal liability is on the petitioner which he would have to discharge by adducing appropriate evidence at trial. The complaint cannot be dismissed on the assumption that there was no legal liability. Writ Petition is accordingly dismissed summarily. (D.G. KARNIK,J.)