1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION No.545/201 Dhiraj s/o Dhanraj Bhandare, aged about 39 years, Occ. Business, r/o Hindustan Auto Deal, Kailashpati Apartment, Shop No. B-14 A, Near Gamdur Hotel, Kamptee Road, Nagpur. .....APPLICANT ...V E R S U S... Aslam Khann s/o Haji Haafiz Khan, age not known, Occ. Business, r/o Gujri Bazar, Ward No. 43, near Daroga Masjid, Near Kamptee Typing Institute, Kamptee, Tq. Kamptee, Dist. Nagpur. ....NON APPLICANT ------------------------------------------------------------------------------------------- Mr. Abdul Bashir, Advocate for applicant. Mr. R. K. Tiwari, Advocate for non applicant. ------------------------------------------------------------------------------------------- CORAM:- M. N. GILANI, J. DATED:- 25 th NOVEMBER, 2011 P. C. 1. The applicant is original complainant in Summary Criminal Complaint Case No.4208/2008 decided on 13.04.2011 by Judicial Magistrate First Class, Nagpur whereby the non applicant-accused was acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard both sides. Perused the judgment impugned in this application. The learned Magistrate set out four points for determination. The facts that the cheque was presented to the Bank and it was dishonoured with an endorsement “Insufficient 2 Funds” and that the complainant had issued mandatory notice to the non applicant-accused before filing of the complaint were held to be proved. However, the learned Magistrate was of the view that the complainant failed to prove that a loan of Rs. 1,50,000/- (Rs. One Lac Fifty Thousand Only) was advanced to the non applicant-accused and in lieu thereof the cheque in question was issued. 3. The non applicant-accused put forth a defence that his signature was obtained on blank paper and when the cheque was signed by him it was blank, which was delivered by him to the brother of the complainant. It means that it is not disputed that the cheque in question was signed by the non applicant- accused, of course, may be blank. Prima facie, this casts burden upon the accused to rebut the presumption, which is available under section 139 of the Negotiable Instruments Act in favour of the complainant. On perusal of the para 13 and 14 of the impugned judgment, it appears that the learned Magistrate wanted to probe the capacity and source of income of the applicant-complainant. Whether all these factors are relevant in deciding a case under Section 138 of the Negotiable Instruments Act need consideration. This Court is, therefore, of the view that arguable points are involved. Hence, the application is allowed. Leave as prayed for is granted. 3 Action under Section 390 of the Code of Criminal Procedure Code. Appeal : Admit. JUDGE kahale