1 (crim appln 495 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 495 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 IN C.C. NO. 658/SS/2007 Ramanna Shetty ...Applicant vs. Santosh Sitaram Yadav and Ors. ...Respondents ----- Mr.N.Khan and Mr.R. Shaikh for Applicant Mrs.M.R. Tidake -APP for State ----- CORAM: V.M. KANADE J. DATED: 18TH AUGUST, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. 2. The Applicant has filed this application for leave to file appeal against the judgment and order passed by the Learned Magistrate in a complaint filed him under section 138 of the Negotiable Instruments Act. 2 (crim appln 495 of 2010) 3. It is the case of the Applicant that the Accused had given him a cheque for Rs.1,00,000/- drawn on Bank of Baroda, Chakala, Mumbai. However, when the said cheque was deposited, it was dishonoured. Thereafter, a statutory notice was sent by the Applicant and after the said amount was not paid within 15 days from the receipt of the legal notice, a complaint was filed. The Complainant examined himself and he was cross examined by the Accused. The Trial Court held that the accused has rebutted the initial presumption regarding the existence of the legally enforceable debt and that the Original Complainant had failed thereafter to prove that there was any existing debt or liability. It is a well settled position in law that while exercising the jurisdiction under section 378 of the Cr.P.C., the High Court is not expected to re-appreciate the evidence on record and only in cases where it is found that the Trial Court has committed manifest error in law or if it is found that the 3 (crim appln 495 of 2010) finding is recorded by the Trial Court on extraneous material, which is not drawn out by the record, only under these limited circumstances the High Court can interfere with the order of rebuttal passed by the Trial Court. 4. In the present case, on perusal of the complaint and the evidence led by the Applicant, there is no material to indicate that there was existing debt or liability though a presumption is raised about the existence of such a debt or liability under section 139 of the Negotiable Instruments Act. The initial burden is still on the Complainant. The Trial Court, in my view, was justified in coming to the conclusion that the xerox copy of the letter dated 13.11.2006 was not proved by the Applicant and, therefore, reliance could not be placed on the said letter. The Learned Magistrate has thereafter, further observed that even if the contents of the letter are accepted as correct, 4 (crim appln 495 of 2010) even then it could not be said that the liability had existed unless it was proved that the electric meter was only transferred in the name of the accused. 5. Hence, it is not possible to interfere with the order passed by the Trial Court. 6. Leave is, accordingly, refused. (V.M. KANADE J.)