[-1-] IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.2297 OF 2006. CRIMINAL APPLN.NO.2297 OF 2006. CRIMINAL APPLN.NO.2297 OF 2006. Rajaram Gulabi Naik. .. Applicant. versus Vithal Appa Gawas & Anr. .. Respondents. Mr.S.S. Redekar, Advocate for Applicant. Mr.Sudhi Prabhu, Advocate for Respondent No.1. Mr. V.B. Konde-Deshmukh, A.P.P. for State. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 16, 2008 DATE : JUNE 16, 2008 DATE : JUNE 16, 2008. P.C. P.C. P.C. 1. The applicant-original complainant has preferred this application for leave to file appeal against judgment and order dated 8th July 2005 passed by the learned Judicial Magistrate First Class, Sawantwadi, in R.C.C> No.100/2000. By the said judgment and order, the learned Judicial Magistrate First Class acquitted the respondent-original accused of the offence under section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that his wife owned a truck bearing No.GA-01/A-1043. The complainant looked after all the transactions of the truck belonging to his wife. The complainant and accused entered into a contract in respect of [-2-] the said truck, whereby the truck was given on rental basis to the accused at the rate of Rs.30,000/- per month. As there were arrears of Rs.40,000/- towards rent, the accused gave cheque of Rs.20,000/- to the complainant. As the cheque was not honoured, the complaint came to be filed. 3. I have heard the learned counsel for the applicant, i.e. original complainant and the learned counsel for the respondent-original accused. I have perused judgment and order as well as the evidence, which has been annexed to the appeal. 4. The case of the complainant is that an agreement was entered into with the accused, whereby the truck belonging to the wife of the complainant was given on rent to the accused. It is evident from the evidence that the truck was given to the accused to ply the truck on commercial basis in Maharashtra. The said vehicle is registered in Goa State. In the cross-examination of the complainant, he has admitted in para 3 that truck was registered in Goa State. The complainant has stated that the truck was used by accused in Maharashtra State, therefore, burden lies on the complainant to show [-3-] that he was permitted to use that truck in Maharashtra State. So far as documents to that effect are concerned, complainant has not produced any document or any R.T.O. permit authorising him to use that truck in Maharashtra State. 5. The complainant has also not produced any agreement entered into between his wife and the accused or the complainant himself and the accused in respect of the truck. Moreover, the complainant has not produced any document to show that he was authorised by his wife to deal with all the transactions of his wife including financial transactions of the said truck. The complainant has not produced any document to show that he was looking after the said transactions. Admittedly, the truck belongs to the wife of the complainant. The wife has appeared before the court and she has deposed on oath and her deposition shows that she is competent to understand the nature of all the transactions relating to the truck. Hence, in such case it is not understood, why the cheque was given in the name of the complainant and not in the name of the wife of the complainant. 6. The case of the complainant is that the truck [-4-] was taken by the accused to ply the same on commercial basis. However thereafter, in the cross-examination the complainant has stated that the accused was engaged in stone mine business and the truck was taken on rent for that purpose. Thus, it is seen that the complainant has changed his version from time to time regarding reason for which the truck came to be taken on rent. this and the above facts create doubt whether the truck was actually given on rent by the complainant to the accused. 7. I have already observed earlier that no agreement has been produced in respect of giving of the truck on rent to the accused nor any other documents has been produced by the complainant to show that there was an agreement regarding giving of the truck on rent to the accused. The case of the complainant as seen from the notice (Exhibit 19) shows that one Pandurang Shivram Naik, resident of Ambeli had witnessed the transaction between the complainant and the accused. However, Pandurang Naik has not been examined. Moreover, no satisfactory explanation has been furnished for not examining Pandurang Naik. 8. The learned Advocate for the applicant [-5-] submitted that there is a presumption available under section 139 of the Act that the cheque was given in respect of legally enforceable liability. In support of this contention, he has placed reliance on a decision of our court in the case of Santan Financers and Real Estate Pvt. Ltd. v/s. Devapa A. Sarvi, reported in 2005(2) Bom.C.R. (Cri.) 143. There can be no dispute that such a presumption is available under section 139 of the Act. However, the said presumption is a rebuttable presumption. The presumption can be rebutted either by the accused leading evidence or from the evidence of the complainant, which would make the case of the complainant improbable that the cheque was issued in discharge of any debt or any other liability. Looking to the evidence in the present case, it can be said that the presumption is rebutted. 9. The learned Magistrate has taken the above facts into consideration as well as other facts and thereafter, he acquitted the respondent-accused. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. [-6-] 10. The application is rejected. ( SMT.V.K.TAHILRAMANI, J.) ( SMT.V.K.TAHILRAMANI, J.) ( SMT.V.K.TAHILRAMANI, J.)